25] stipulates that: “If the parties have an agreement on the advance money and the interest on the advance money, and the contractor requests to return the advance money and its interest according to the agreement, the people’s court shall support it, except for the part where the agreed interest calculation standard is higher than the interest rate of the same kind of loan at the time of the advance money or the market quoted interest rate of the loan at the same period.
As for the constructor, it is his own business judgment and self satisfied business risk to invest his own funds or choose to borrow from abroad.
In the absence of an agreement, the constructor cannot request the return of the advance cost, but can only claim the project arrears.
If the parties have not agreed on the advance money, and the contractor requests to pay the interest, the people’s law The hospital does not support it “.
A typical case of construction projects in Qingdao courts Case 7 of Qingdao Intermediate People’s Court in April 2002: a construction company in Pingdu sued a construction company in Jiaozhou for a construction contract dispute — to claim interest on advances, it must be clearly agreed in the contract that in September 2018, a construction company in Pingdu signed a Construction Contract with a construction company in Jiaozhou, stipulating that if advances are needed for project contracting, It shall be organized and implemented by a construction company.
The court held that the contract signed by both parties clearly agreed that the construction party, namely Pingdu Construction Company, should pay the advance money for construction, while the two parties did not agree that the Employer should pay the advance money interest in the contract.
Therefore, the construction enterprise must be careful when signing the advance construction contract with the Employer, never ignore the consequences of the advance, and blindly agree to the advance construction, especially in the case of foreign financing, once the project funds cannot be recovered in time, it will also lead to the failure to repay the foreign financing, expand the financing costs, reduce the construction profits, and create difficulties for the company’s operation.
After the completion of the project construction, a construction company in Jiaozhou, the employer, did not pay the project funds, but Pingdu, a construction company, sued for the project funds.
Seen from the above legal provisions, the advance cost of the constructor is included in the project payment.
In this case, even if the capital advanced by Pingdu Construction Company comes from bank loans, it has also been materialized into the project funds obtained by the involved construction company.
At the same time, the employer, a construction company in Jiaozhou, said that because the advance was a loan from a bank, the employer should bear the interest of the advance.
Typical significance Article 25 of the Interpretation of the Supreme People’s Court on the Application of Law to the Trial of Construction Contract Disputes (I) [FSH [2020] No.
If the parties have not agreed on the advance money, it shall be treated as the project debt.
In this case, he claimed that there is no factual and legal basis for the advance interest, and he did not support the lawsuit request of a construction company to pay the interest.
Source: Cooperative Construction Project Legal Review Lawyer Zhang Bin Mobile: 13611833132 Business field enterprise legal adviser, project legal adviser contract, debt dispute (good at collecting project funds and material funds) Undertake various civil and commercial litigation and arbitration activities Senior partner and deputy director of Shanghai Jiya Law Firm..