The Interpretation of the Supreme People’s Court on Applicable Legal Issues in the Trial of Construction Contract Dispute Cases (1) was adopted by the Supreme People’s Court at the 1825th meeting of the Judicial Committee of the Supreme People’s Court on December 25, 2020, and is hereby promulgated as of January 2021 Effective on the 1st.

Supreme People's Court

December 29, 2020

Law Interpretation (2020) No. 25

Interpretation of the Supreme People's Court on the Applicable Law in the Trial of Construction Contract Disputes (1) (Adopted at the 1825th meeting of the Judicial Committee of the Supreme People's Court on December 25, 2020, and effective from January 1, 2021)

In order to correctly hear cases of construction contract disputes, protect the legal rights of the parties in accordance with the law, maintain the order of the construction market, and promote the healthy development of the construction market, in accordance with the Civil Code of the People’s Republic of China, the Construction Law of the People’s Republic of China, and the Tendering and Bidding Law of the People’s Republic of China. "The Civil Procedure Law of the People's Republic of China" and other relevant laws and regulations, combined with trial practice, formulate this interpretation.

　　 Article 1 Where a construction project construction contract has any of the following circumstances, it shall be deemed invalid in accordance with the provisions of Article 153, paragraph 1, of the Civil Code:

　　 (1) The contractor has not obtained the qualification for construction enterprises or has exceeded the qualification level;

　　 (2) The actual constructor without qualification borrows the name of a qualified construction enterprise;

　　 (3) The construction project must be tendered without the tender or the winning bid is invalid.

The construction contract signed by the contractor with others due to subcontracting or illegal subcontracting of construction projects shall be based on Article 153 Paragraph 1 of the Civil Code and Article 791 Paragraph 2 and 3 Provisions are deemed invalid.

Article 2 The project scope, construction period, project quality, project price and other substantive contents stipulated in the construction contract separately signed by the tenderer and the winning bidder are inconsistent with the winning contract, and one party requests to determine the rights and obligations in accordance with the winning contract. The court should support it.

In addition to the winning contract, the tenderer and the winning bidder signed a separate contract for the purchase of real estate, free construction of supporting facilities, profit, donation of property to the construction unit, etc., which were significantly higher than the market price, and the project price was reduced in disguise. One of the parties deviated from the winning bid by the contract Where the substantive content of the contract is based on a request to confirm invalidity, the people's court shall support it.

Article 3 If the parties request confirmation that the construction project construction contract is invalid on the grounds that the developer has not obtained the construction project planning permit and other planning approval procedures, the people’s court shall support it, but the developer obtains the construction project planning permit and other plans before the lawsuit. Except for approval procedures.

　　 The people’s court shall not support the case that the issuer is able to go through the examination and approval procedures but fails to go through it, and requests confirmation of the invalidity of the construction project construction contract on the grounds that it has not gone through the examination and approval procedures.

　　 Article 4 If a contractor signs a construction project construction contract beyond the business scope permitted by the qualification level, and obtains the corresponding qualification level before the completion of the construction project, the people’s court shall not support the request of the parties to deal with the invalid contract.

　　Article 5 The people's court shall not support a labor service subcontract signed by a contractor with the legal qualifications for labor service operations with the general contractor or subcontractor, if the parties request confirmation of invalidity.

　　 Article 6 If a construction contract is invalid and one party requests compensation from the other party, it shall bear the burden of proof on the other party's fault, the magnitude of the loss, and the causal relationship between the fault and the loss.

　　 The magnitude of the loss cannot be determined, and a party requests to determine the magnitude of the loss with reference to the quality standards, construction period, and payment time of the project price as agreed in the contract. The people's court may make a judgment based on the degree of fault of both parties and the causal relationship between the fault and the loss.

Article 7 Where a unit or individual lacking qualifications borrows the name of a qualified construction enterprise to sign a construction project construction contract, and the developer requests the lender and the borrower to bear joint and several liability for damages caused by the loaned qualifications such as unqualified construction project quality, The people's court should support it.

　　 Article 8 If the parties have a dispute over the date of commencement of a construction project, the people's court shall determine it according to the following circumstances:

(1) The commencement date shall be the commencement date specified in the commencement notice issued by the developer or the supervisor; if the commencement notice is not yet available, the commencement date shall be the time when the commencement conditions are met; the commencement time due to the contractor’s reasons In case of postponement, the start date shall be the time specified in the notice of start of work.

　　 (2) If the contractor has actually entered the construction site with the consent of the developer, the actual construction time of the entry site shall be the start date.

(3) If the developer or supervisor has not issued a notice of commencement of construction, and there is no relevant evidence to prove the actual commencement date, it shall comprehensively consider the time specified in the commencement report, contract, construction permit, completion acceptance report, or completion acceptance filing form, and The date of commencement is determined based on the fact that the conditions for commencement are met.

　　 Article 9 If the parties dispute the actual completion date of the construction project, the people's court shall determine it according to the following circumstances:

　　 (1) If a construction project has passed the completion acceptance inspection, the completion date shall be the date of completion acceptance inspection;

　　 (2) If the contractor has submitted the completion acceptance report and the developer delays the acceptance, the completion date shall be the date when the contractor submits the acceptance report;

　　 (3) If the construction project has not been checked and accepted by completion, and the developer uses it without authorization, the completion date shall be the date of transfer of possession of the construction project.

Article 10 The parties agree that the extension of the construction period shall be confirmed by the visa of the issuer or the supervisor. Although the contractor has not obtained confirmation of the extension of the construction period, it can prove that the extension of the construction period has been applied to the issuer or the supervisor within the time limit specified in the contract and the reason for the extension In accordance with the contract, the people's court shall support it if the contractor claims the extension of the construction period on this ground.

　　 If the parties agree that the contractor fails to submit an application for extension of the construction period within the agreed time limit, it shall be deemed that the construction period is not extended, and it shall be dealt with in accordance with the agreement, except that the developer agrees to the extension of the construction period after the agreed period or the contractor raises a reasonable defense.

　　 Article 11 Before the completion of a construction project, if the parties have a dispute over the quality of the project, and the quality of the project has been appraised as qualified, the appraisal period shall be the extended construction period.

　　 Article 12 If the quality of the construction project does not conform to the agreement due to the contractor, the contractor refuses to repair, rework or rebuild, and the developer requests a reduction in the project price, the people’s court shall support it.

　　Article 13 The Employer shall be liable for fault in one of the following circumstances, which causes defects in the quality of the construction project:

　　 (1) The provided design is defective;

　　 (2) The building materials, building components, and equipment provided or designated for purchase do not meet the mandatory standards;

　　 (3) Directly appoint subcontractors to subcontract professional projects.

　　 If the contractor is at fault, he shall also be liable for the fault.

Article 14 The people’s court shall not support the people’s court that claims the rights on the grounds that the quality of the used part of the construction project has not been checked and accepted by the completion of the construction project without authorization after the developer uses it without authorization. Civil liability is assumed for the quality of foundation works and main structure.

　　 Article 15 In the event of a dispute over the quality of a construction project, the developer may file a lawsuit against the general contractor, subcontractor and actual constructor as co-defendants.

Article 16 In a construction contract dispute case filed by the contractor, the developer shall pay the contractor liquidated damages or compensate the contractor for reasonable costs of repair, rework, or reconstruction on the grounds that the quality of the construction project does not conform to the contractual agreement or legal provisions. Where a counterclaim is filed for losses, the people's court may conduct joint trials.

　　 Article 17 In any of the following circumstances, where the contractor requests the developer to return the project quality deposit, the people's court shall support:

　　 (1) The time limit for returning the project quality deposit agreed by the parties expires;

　　 (2) If the parties fail to agree on the time limit for the return of the project quality deposit, two years shall expire from the date the construction project passes the completion acceptance;

(3) If the construction project fails to be completed and accepted within the agreed time limit due to the cause of the developer, the time limit for the return of the project quality guarantee money agreed by the parties expires 90 days after the contractor submits the project completion acceptance report; if the parties have not agreed on the time limit for the return of the project quality guarantee money, Two years will expire after 90 days after the contractor submits the project completion acceptance report.

　　 After the developer returns the project quality deposit, it will not affect the contractor's performance of the project warranty obligations in accordance with the contract or the law.

　　 Article 18 If the warranty party fails to perform the warranty obligations in a timely manner, causing damage to the building or causing personal damage or property loss, the warranty party shall be liable for compensation.

　　Where the warranty holder and the building owner or the contract issuer are at fault for the damage to the building, each shall bear corresponding responsibilities.

　　 Article 19 If the parties have agreed on the pricing standard or method of construction projects, the project price shall be settled in accordance with the agreement.

　　 If the quantity or quality standard of the construction project changes due to design changes, and the parties cannot agree on the price of this part of the project, the project price can be settled by referring to the valuation method or valuation standard issued by the local construction administrative department when the construction contract is signed.

　　 If the construction contract is valid, but the construction project fails to pass the acceptance check upon completion, it shall be handled in accordance with Article 577 of the Civil Code.

　　 Article 20 If the parties have disputes over the project quantity, they shall be confirmed in accordance with written documents such as visas formed during the construction process. If the contractor can prove that the developer agrees to the construction, but fails to provide the visa documents to prove that the amount of construction has occurred, it may confirm the actual amount of construction based on other evidence provided by the parties.

　　 Article 21 The parties agree that after receiving the completion settlement documents, the developer does not reply within the agreed time limit, and if it is deemed to have approved the completion settlement documents, it shall be handled in accordance with the agreement. Where the contractor requests that the project price be settled in accordance with the completion settlement documents, the people's court shall support it.

Article 22 The construction contract signed by the parties is inconsistent with the project scope, construction period, project quality, and project price specified in the bidding documents, bidding documents, and bid-winning notice. One party requests that the bidding documents, bidding documents, and bid-winning notice The people’s court shall support it if the document is used as the basis for the settlement of the project price.

Article 23 After the developer bids for a construction project that is not subject to bidding in accordance with the law, the construction contract separately concluded with the contractor deviates from the substantive content of the winning contract, and the parties request the winning contract as the basis for the settlement of the construction project price , The people’s court should support it, except that the developer and the contractor have entered into a construction project construction contract due to changes that were unforeseen during the bidding and bidding due to objective circumstances.

Article 24: If several construction project construction contracts entered into by the parties for the same construction project are all invalid, but the quality of the construction project is qualified, and one of the parties requests to compensate the contractor with reference to the actual contract’s agreement on the project price, the people’s court shall grant stand by.

　　 The actual performance of the contract is difficult to determine, and the parties request to compensate the contractor with reference to the contractual agreement on the project price in the last signed contract, the people's court shall support it.

Article 25 The parties have an agreement on the advancement and the interest of the advancement. If the contractor requests the return of the advancement and the interest in accordance with the agreement, the people's court shall support it, but the agreed interest calculation standard is higher than the similar loan interest rate at the time of advancement. Or except for the part of the interest rate quoted in the loan market during the same period.

　　 If the parties have not agreed on the advancement of funds, they shall be dealt with according to the project arrears.

　　 The parties did not agree on the interest on advances, and the people’s court would not support the contractor’s request for payment of interest.

　　 Article 26 If the parties have agreed on the interest calculation standard for the outstanding project price, they shall be dealt with in accordance with the agreement. If there is no agreement, interest will be calculated based on the same loan interest rate in the same period or the market quoted interest rate of the loan in the same period.

　　 Article 27 Interest shall be calculated and paid from the date when the project price is due. If the parties have not agreed on the time of payment or the agreement is not clear, the following time shall be regarded as the time of payment:

　　 (1) If the construction project has been actually delivered, it is the delivery date;

　　 (2) If the construction project is not delivered, it shall be the date of submission of the completion settlement documents;

　　 (3) If the construction project has not been delivered and the project price has not been settled, it shall be the day when the party concerned sue.

　　 Article 28 If the parties agree to settle the project price at a fixed price, and one party requests an appraisal of the construction project cost, the people's court shall not support it.

　　 Article 29 The parties have reached an agreement on the settlement of the construction project price before the lawsuit, and if one of the parties in the lawsuit applies for appraisal of the project cost, the people's court shall not allow it.

Article 30 Before the litigation, the parties jointly entrust relevant agencies and personnel to issue advisory opinions on the construction project cost, and if one of the parties in the litigation does not approve the advisory opinion to apply for appraisal, the people’s court shall allow it, but both parties expressly accept the advisory opinion Except for constraints.

　　 Article 31 If the parties have disputes over some of the facts of the case, only the disputed facts shall be appraised, but the scope of the disputed facts cannot be determined or the parties request the appraisal of all the facts.

　　 Article 32 If the parties have disputes over specialized issues such as project cost, quality, repair costs, etc., if the people's court deems that an appraisal is necessary, it shall explain to the party who bears the burden of proof. If the party concerned has not applied for an appraisal after explanation, has applied for an appraisal but failed to pay the appraisal fee or refuses to provide relevant materials, it shall bear the legal consequences of not being able to provide evidence.

In the first-instance litigation, the parties who have the burden of proof did not apply for appraisal, although they applied for appraisal but did not pay the appraisal fees or refused to provide relevant materials, the second-instance litigation applied for appraisal, and the people’s court deems it necessary to comply with the 100th Article 70 shall be dealt with according to the third paragraph of the first paragraph.

　　 Article 33 After the people's court approves the appraisal application of the parties, it shall determine the matters, scope, and period of appraisal for the entrusted appraisal based on the party's application and the need to find out the facts of the case, and organize the parties to cross-examine the disputed appraisal materials.

　　 Article 34 The people's court shall organize the parties to cross-examine the expert opinion. Where an expert uses the disputed and uncross-examined materials as the basis for the evaluation, the people's court shall organize the parties to cross-examine the materials. If it is deemed that it cannot be used as the basis for authentication after cross-examination, the authentication opinions made on the basis of the materials shall not be used as the basis for ascertaining the facts of the case.

Article 35: Where a contractor who has entered into a construction contract with the developer to request the price of the project to be paid for the project’s discount or auction price in accordance with Article 807 of the Civil Code, the people’s court shall grant stand by.

　　 Article 36 The contractor’s right of priority to repay the construction project price in accordance with Article 807 of the Civil Code is superior to mortgage rights and other claims.

　　Article 37 If a decoration project has the conditions for discount or auction, and the contractor of the decoration project requests the project price to be compensated with priority over the discount or auction price of the decoration project, the people's court shall support it.

　　 Article 38 Where the quality of a construction project is qualified and the contractor requests that the price of the construction project be compensated with priority in respect of the project discount or auction price, the people's court shall support it.

　　 Article 39 If the quality of an uncompleted construction project is up to standard, and the contractor requests that the price of the construction project be compensated for the partial discount of the construction project or the auction price, the people's court shall support it.

　　Article 40 The priority scope of the contractor’s construction project payment shall be in accordance with the relevant