This interpretation is formulated on the basis of the "Civil Code of the People's Republic of China", the "Construction Law of the People's Republic of China", the "Bidding and Bidding Law of the People's Republic of China", the "Civil Procedure Law of the People's Republic of China" and other relevant legal provisions, combined with trial practice, so as to correctly hear cases of disputes over construction contracts, protect the lawful rights and interests of the parties in accordance with law, maintain the order of the construction market, and promote the healthy development of the construction market.
1. The validity of the construction contract of the construction project.
Article 1 A construction contract shall be found to be invalid in accordance with the provisions of the first paragraph of Article 153 of the Civil Code under any of the following circumstances:
1) The contractor has not obtained the qualification of a construction enterprise or has exceeded the qualification level;
2) The actual constructor without qualifications borrows the name of a qualified construction enterprise;
C) the construction project must be tendered and not tendered or the bid is invalid.
A construction contract signed by a contractor with another person due to subcontracting or illegal subcontracting of a construction project shall be found to be invalid in accordance with the provisions of paragraph 1 of Article 153 and paragraphs 2 and 3 of Article 791 of the Civil Code.
Article 2 Where a party requests confirmation of the invalidity of a construction project construction contract on the grounds that the employer has not obtained a construction project planning permit or other planning approval formalities, the people's court shall support it, except where the employer obtains a construction project planning permit and other planning approval formalities before filing a lawsuit.
Where the employer is able to go through the examination and approval formalities but fails to do so, and requests confirmation of the invalidity of the construction contract on the grounds that the approval formalities have not been completed, the people's court shall not support it.
Article 3 If a construction contract is invalid and one party requests the other party to compensate for the loss, it shall bear the burden of proof on the fault of the other party, the size of the loss, and the causal relationship between the fault and the loss.
Where the size of the loss cannot be determined, and one party requests compensation for the loss with reference to the quality standards, construction period, and project price settlement standards agreed in the contract, the people's court shall support it.
Article 4: Where a contractor signs a construction contract beyond the scope of business permitted by the qualification level, and obtains the corresponding qualification level before the completion of the construction project, and the parties request that it be handled as an invalid contract, the people's court will not support it.
Article 5: In any of the following circumstances, it shall be found to be a subcontracting of a construction project as referred to in Article 788 of the Civil Code:
1) The contractor has not set up a project management organization and dispatched corresponding personnel at the construction site, nor has it organized and managed the construction activities of the project;
2) The contractor has not invested in the management of the project funds or provided the construction materials and equipment for the project.
Where the employer, in accordance with Article 791 of the Civil Code, requests that the construction contract of a construction project be invalid solely on the ground that the contractor has not established a project management organization and stationed corresponding personnel in the location of the project, the people's court shall not support it.
Article 6: Where a party requests confirmation of the invalidity of a construction contract on the grounds that a subcontracted construction project violates the mandatory provisions of laws or administrative regulations, the people's court shall support it.
2. The invalidity and performance of the construction contract.
Article 7: Where a construction contract is invalid under any of the following circumstances, but the quality of the construction project meets the mandatory standards and passes the completion acceptance, the people's court may compensate the contractor at a discount with reference to the provisions of Article 807 of the Civil Code
1) The contractor signs a construction contract beyond the scope of business permitted by the qualification level;
2) The contractor has not obtained the qualification of a construction enterprise and signs a construction contract with others;
3) The construction enterprise contracts the project beyond the business scope permitted by the qualification level of the enterprise;