2021, Henan Changhao law firm trainee lawyer Xu Jiali on the "civil code" construction contract new provisions of the interpretation and analysis of the theme of the sharing.

This sharing mainly from the new provisions of the overall change analysis, important revision interpretation, changes in the application of the law and the impact of construction contract disputes to do a legal analysis of four points.

On December 29,2020, the Supreme People's Court issued the "interpretation on the application of legal issues in the trial of construction contract disputes (I) " (interpretation No. 25[2020] , hereinafter referred to as "the new judicial interpretation") , the 2021 will go into effect on January 1.

The new judicial interpretation was formulated by the Supreme People's Court to adapt to the relevant provisions of the Civil Code, its main use of the "construction contract disputes on the trial of the Supreme People's Court" (2004) No. 14, hereinafter referred to as "the original judicial interpretation (I) ") , "construction contract disputes on the trial of the Supreme People's Court interpretation (II) " (20[2018] , hereinafter referred to as "the original judicial interpretation (II) ") , most of the provisions, also has absorbed the construction engineering domain other related stipulation, and has carried on the partial revision.

Through the comparison between the interpretation of the Civil Code on the application of law to the trial of construction contract disputes in the Supreme People's Court (1)(hereinafter referred to as the new judicial interpretation 1) and the interpretation of the Supreme People's Court on the application of law to the trial of construction contract disputes before the Civil Code (1)(hereinafter referred to as the old judicial interpretation 1) and the old judicial interpretation 2, there are seven major changes:

1. The provisions on the invalidity of construction contracts for construction projects are added

The new judicial interpretation 1 added the situation of finding invalidity to the three invalidity cases stipulated in the old judicial interpretation 1, that is, "the construction contract signed by the contractor with others for subcontracting or illegal subcontracting of construction projects shall be deemed invalid in accordance with the provisions of Article One hundred and fifty-three, paragraph 1, and Article Seven hundred and ninety-one, paragraph 2 and paragraph 3 of the Civil Code. " Article One hundred and fifty-three, paragraph 1 of the Civil Code refers to "the invalidity of civil legal acts that violate the mandatory provisions of laws and administrative regulations. ". The second paragraph of Article Seven hundred and ninety-one means that "the contractor shall not subcontract all the construction works contracted by him to a third party or subcontract all the construction works contracted by him separately in the name of subcontracting" . The third paragraph refers to "It is prohibited for a contractor to subcontract a project to a unit that does not have the relevant qualifications. It is prohibited for a subcontractor to subcontract a project that it has contracted. The construction of the main structure of the construction project must be completed by the contractor itself" .

2. When the construction contract of a construction project is valid, the handling mode is adjusted in case of unqualified acceptance after completion of the project

Article 19 of the new judicial interpretation stipulates, "If a construction project construction contract is valid, but the construction project is not up to standard after completion and acceptance, it shall be dealt with in accordance with article five hundred and seventy-seven of the Civil Code. " Article Five hundred and seventy-seven here refers to the remedy of liability for breach of contract in the Civil Code, this includes "assuming the liability for breach of contract, such as continuing performance, taking remedial measures or making compensation for losses. " Rather than in accordance with the old judicial interpretation that in such cases only the settlement of the project price shall be determined on the basis of whether the construction project has passed the acceptance test after repair, in fact, the first new judicial interpretation is to return to the contractual liability for breach of contract relief measures in principle.

3. The actual performance of the contract is difficult to determine the case of a change in treatment

Article twenty-four of the new judicial interpretation, "The actual performance of the contract is difficult to determine, the parties request reference to the final contract on the project price agreed to compensate the contractor discount, the People's Court should be supported. " "refer to the contract signed at the end of the settlement of construction costs. " The settlement of construction costs will be changed to the agreed cost of the project to compensate the contractor at a discount.

4. It is clear that the priority of construction project repayment right is superior to mortgage right and other creditor's rights

The new judicial interpretation of Article thirty-six (new Article)"the contractor under the provisions of Article Eight hundred and seven of the Civil Code Construction project price prior to the right to mortgage and other claims. ".

5. Adjustment of realization mode of priority for compensation in decoration and fitment engineering

Article thirty-seven of the new judicial interpretation has been amended, deleted and improved on the basis of the provisions of Article 18 of the second old judicial interpretation. New Judicial interpretation a clear decoration project to achieve the priority to be repaid when the project has a discount or auction conditions for the premise. Deletion of the second provision of the old judicial interpretation, "except that the owner of the building is not the contractor of the decoration works. "

6. The priority right to receive compensation for construction projects was extended from 6 months to 18 months

Article forty-one of the new judicial interpretation stipulates that "the contractor shall exercise within a reasonable period of time the priority to be repaid for the construction project price, but the maximum period shall not exceed 18 months. ". A change was made to the previous six-month period.

7.The conditions for the actual constructors to exercise subrogation are lowered, and the scope of subrogation is expanded

Article forty-four of the new judicial interpretation, "where the actual builder, pursuant to Article Five hundred and thirty-five of the Civil Code, brings an action of subrogation against the subcontractor or the sub-contractor for breach of the law if the subcontractor fails to exercise the creditor's rights due to the employer or the subordinate rights related to the said creditor's rights, thus affecting the realization of the creditor's rights due to the subcontractor, the People's Court shall support it. ". It not only increases the scope of the exercise of the right from the right as the right of subrogation, but also removes the proof standard of "cause damage to it" stipulated in the second of the old judicial interpretation, and reduces it to "influence the realization of the right due to it" , this should be a reflection of the new judicial interpretation that tends to protect actual construction workers.