The general contract for the project has its own characteristics as compared to the contract for the construction of the construction project, with the addition of the content of the design, procurement, etc. However, there is no special provision of the current law on the determination of the validity of the general contract for the project. The determination of the validity of the general engineering contract, should be based on the civil code, the urban and rural planning law. The first instance instrument number of this case is Taizhou Intermediate People's Court of Jiangsu Province (2015) Taizhong Minchu Zi No. 00066, and the second instance instrument number is Jiangsu Province Higher People's Court (2017) Su Minzhi No. 371.
1. Is the general contracting contract invalid without obtaining the engineering planning license?
Shanghai Baoye argued that the EPC general contract in this case is a construction contract, not a construction contract, and the laws applicable to both are different. Laws and administrative regulations do not provide for the signing of construction contracts must obtain land use planning permission; EPC general contracting contract contracting content including design, procurement, construction, the contract is signed before the design drawings, for the project planning license, therefore, the effectiveness of the EPC general contracting contract is not subject to the impact of the construction project planning license.
Article 40 of the Urban and Rural Planning Law stipulates that in the city, town planning area for buildings, structures, roads, pipelines and other engineering construction, the construction unit or individual shall apply to the city, county people's government urban and rural planning department or the people's government of the town of the people's government of the province, autonomous regions and municipalities directly under the Central Government to apply for the construction project planning permit.
The application for construction planning permit shall be submitted to the use of land related documents, construction engineering design plan and other materials.
Article 3 of the Judicial Interpretation of Construction Contracts (I) stipulates that the people's court shall support the request for confirmation of the invalidity of the construction contract on the grounds that the contractor has not obtained the construction project planning permit and other planning approval procedures, except for the contractor to obtain the construction project planning permit and other planning approval procedures prior to the prosecution.
The court of second instance held that, compared with the construction contract, the EPC general contract has its own characteristics with the addition of design and procurement, but there is no special provision in the current law regarding the determination of the validity of the EPC general contract, and the determination of the validity of the EPC general contract should be based on the Civil Code and the Urban and Rural Planning Law. The construction contract signed between the contractor and the contractor shall be invalid for the project which has not yet obtained the approval of the construction project planning permission. The project did not obtain land use planning permission, construction planning permission, and did not obtain the appropriate approval procedures or approval by the competent authorities before the end of the first instance court debate, the EPC general contract shall be deemed invalid.
A key issue here is that the general contracting includes at least two parts of the design and construction, the construction part of the general contracting contract is invalid, does it necessarily lead to the invalidity of the general contracting contract? In other words, part of a contract is invalid, whether the whole contract is invalid?
This ID engineering and real estate Shaw lawyers believe that, according to Article 156 of the Civil Code, "If part of a civil legal act is invalid, and does not affect the validity of the other parts, the other parts remain valid." It should be recognized that the design part and the construction part of the general contracting contract are two essentially different contents, and the design and construction are relatively independent. Therefore, the invalidity of the construction part should not affect the validity of the other parts. Simply and roughly to the construction part of the invalid, and that the whole engineering general contract is invalid, is unreasonable; Also is not conducive to the maintenance of freedom of contract, promote market transactions!
2. master and slave contract and the determination of contract independence?
In this case, the Court of First Instance held that the Repayment Agreement was a supplement to the EPC general contract, not a liquidation agreement for the project, and did not have independence, the EPC general contract was invalid, and the Repayment Agreement was invalid. The main contract of the Equity Pledge Guarantee was the EPC general contract, not the repayment agreement, the main contract was invalid, and the Equity Pledge Contract was also invalid.
The court of second instance held that the determination of the validity of the repayment agreement should be based on the background of the formation of the repayment agreement, the purpose of the contract, the content of the terms. According to the analysis of the specific circumstances of the case, the repayment agreement has independence, not subordinate to the EPC general contract, its effectiveness is not due to the EPC general contract is invalid and invalid, the content of the repayment agreement is not contrary to the mandatory provisions of the laws, administrative regulations, should be recognized as lawful and effective.
The effectiveness of the repayment agreement is independent of the EPC general contract, and the equity pledge is also effective. Therefore, although the EPC general contract is invalid due to the lack of construction planning permission and other approval procedures, but the meaning of the pledge of equity is true, the content does not violate the mandatory provisions of laws and administrative regulations, the pledge of equity should be valid.
3. Advances and interest on advances recognized?
The judicial interpretation of construction contracts (a) "Article 25," "the parties to the advances and advances of interest have agreed, the contractor requested in accordance with the agreement to return the advances and their interest, the people's court shall support, but the agreed interest calculation standard is higher than the advances of the same type of loan interest rates or interest rates of the same period of the loan market quotes, except for the part of the. " The provisions of the interest calculation standards for advances apply to the period of advances, the parties in advances after the expiration of the agreement on late payment of advances interest calculation standards, does not violate the content of the provisions of the article.
The court of second instance held that, regarding the standard of calculation of interest on outstanding payments, on November 26, 2013, Shanghai Baoye Company, Taizhou Zhenchang Company *** with the seal confirmation of the project settlement sheet contains, interest on advances and equipment value-added tax according to the terms of the contract. The project statement was legal and valid, and the standard for calculating the interest on advances agreed upon should also be valid. The EPC general contract agreed that if the advance payment was repaid late, the interest would be calculated from January 1, 2015 onwards at five percentage points above the bank's lending rate for the same period of time. The court of second instance held that, Shanghai Baoye company in accordance with the above content of the agreement to claim according to the people's bank of China in the same period of the same type of loan interest rate floating five percentage points of interest, with contractual basis, should be supported.
4. Witness testimony and expert witnesses identified?
Taizhou Zhenchang company that Shanghai Baoye company built converter volume and the contract agreed to design the 50-ton volume does not match, which provides the following evidence: decarburization furnace (converter) appearance of the two photographs, the unit employed Ge Weiliang witness testimony as evidence. Shanghai Baoye company examination: the authenticity of the photographs, the legitimacy, the purpose of proof are not recognized, the witness statement is a personal opinion, not recognized. The court of first instance that the authenticity of the two decarburization furnace (converter) periphery and furnace bottom photos provided by Taizhou Zhenchang Company can not be confirmed, the authenticity of the witness statement is recognized, but its personal opinion is not enough to prove that the converter volume built by Shanghai Baoye Company does not meet the facts of the design requirements.
Taizhou Zhenchang Company believes that the general contracting work of Shanghai Baoye Company has the problem of insufficient nitrogen pressure in the gun head and the wear of the converter, for which it provides the following evidence: repayment agreement, contact letter and reply letter, and the witness statement of Ge Weiliang, the unit's employer, as evidence. Shanghai Baoye company cross-examination: the witness statement is a personal opinion, not recognized. The court of first instance that the authenticity of the witness statement to be confirmed, but its personal opinion lack of professional and authoritative, not yet sufficient to prove that the project exists in Taizhou Zhenchang company claimed the above defects.
We see, in the field of engineering construction, witness testimony on the quality of the project is difficult to be recognized by the court. In this regard, what can be tried is an expert witness or expert opinion!