If a party requests to confirm the invalidity of the construction contract of the construction project on the ground that the employer has not obtained the planning approval procedures such as the construction project planning license, the people’s court shall support it, Except that the employer obtains the planning approval procedures such as the construction project planning permit before filing a lawsuit.
The reading reminds the contractor that there are also negative and positive views on whether the illegal construction can enjoy the priority of project payment.
Whether it can be approved is decided by the administrative department in charge.
Strait company claims that Hechang company can handle the examination and approval procedures but fails to do so.
(hereinafter referred to as Hechang company).
Because the illegal construction project violated the prohibitive provisions of the law and could not obtain the ownership of the real estate, the court ruled that the project was a project that could not be converted and auctioned, and the contractor did not have priority over the project price involved in the case, which was not improper.
Even if the construction contract of the construction project is invalid, because the project quality is qualified, the Strait company can still request Hechang company to pay the project price according to the contract, and enjoy the priority of compensation for the project discount or auction price according to law.
If the employer fails to pay within the time limit, the contractor may negotiate with the employer to convert the project into price, or request the people’s court to auction the project according to law, except that it is not suitable to convert or auction the project according to the nature of the construction project.
The Strait company knew that the approval procedures of the project involved in the case were not perfect and carried out the construction in pursuit of illegal commercial interests.
The project involved in the case has not obtained the construction project planning license, which is an illegal building and should be demolished.
(hereinafter referred to as Strait company) refused to accept the civil judgment (2019) Min Min Zhong No.
Although the project involved in the case has not been completed, the quality of some completed projects has passed the inspection.
The priority of project funds is subordinate to the rights of the contract.
Hechang company believes that the evidence submitted by Strait company cannot prove that the project involved in the case can be discounted and auctioned.
The premise of the priority of the project payment is that the employer fails to pay the price as agreed, and the premise of paying the price as agreed is that the construction contract of the construction project is valid.
” Hechang company and Strait company have no objection that the project involved in the case has not obtained the construction project planning permit so far.
It is not a project that can be discounted and auctioned, and Strait company should not enjoy the priority of the construction project price.
The construction contract of the construction project involved in the case was signed with the Strait company by the outsider who forged the seal of Hechang company.
The negative theory believes that because the illegal construction cannot be auctioned or discounted, and there is a suspicion that the illegal act can be legally confirmed through civil judgment, it cannot enjoy the priority of compensation for the project price.
The price of the construction project shall be paid in priority with the price of the project converted or auctioned.
Judgment opinion: the Supreme Court held that: first, the validity of the construction contract of the construction project involved in the case.
After the contract involved in the case was confirmed to be invalid, Strait company enjoyed not the right to claim the payment of project funds, but the right to claim discount compensation.
It only had the right to request to “refer to” the contract agreement to pay the project price, which was different from “pay the project funds according to” the contract agreement.
In addition, according to the provisions of the second paragraph of Article 2 of the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract disputes (II), Hechang company, as the legal obligor for the construction project planning license, can apply for the construction project planning license without deliberately failing to do so, and its claim that the case involves the invalidity of the construction contract of the construction project should not be supported.
The construction contract of the construction project is invalid, and the priority of project funds should also be invalid.
Article 2 of the interpretation of the Supreme People’s Court on the application of law in the trial of disputes over construction contracts of construction projects (II) stipulates: “If the party concerned requests to confirm the invalidity of the construction contract of the construction project on the ground that the employer has not obtained the planning approval procedures such as the construction project planning license, the people’s court shall support it, except that the employer has obtained the planning approval procedures such as the construction project planning license before filing a lawsuit.
Its claim could not be supported by the non bona fide counterpart.
According to the evidentiary rule of “who claims, who gives evidence”, Strait company should bear the burden of proof.
The judgment of the second instance found that the construction contract of the construction project involved in the case was invalid, which has factual and legal basis..
It is definitely believed that although it is an illegal building, the illegal building also has use value, and the contractor has actually invested labor, machinery, financial resources, etc., so in order to protect the interests of the contractor, it should be recognized that it has the priority to be compensated for the project price of the illegal building, which is also consistent with the auction of the illegal building according to the current situation in the implementation procedures in recent years.
Moreover, the planning permission of the construction project belongs to the matter of administrative permission, and the submission of materials is only a prerequisite.
Article 807 of the civil code, if the employer fails to pay the price as agreed, the contractor may urge the employer to pay the price within a reasonable period.
1037 of Fujian Higher People’s court and applied to the Supreme Court for retrial due to the case of construction contract dispute with Hechang (Fujian) real estate development Co., Ltd.
Brief introduction of the case: China Construction Strait construction and Development Co., Ltd.
Strait company believes that according to Article 286 of the contract law of the people’s Republic of China, the project involved in the case is not suitable for discount and auction.
If the employer can handle the approval procedures but fails to do so, and requests to confirm the invalidity of the construction contract of the construction project on the ground that the approval procedures have not been handled, the people’s court shall not” Support.
At present, negation is the mainstream.
Relevant laws and regulations, judicial interpretation “interpretation of the Supreme People’s Court on the applicable legal issues in the trial of disputes over construction contracts of construction projects (I)” Article 3.
If the employer can handle the approval procedures but fails to do so, and requests to confirm the invalidity of the construction contract of the construction project on the ground of failing to handle the approval procedures, the people’s court will not support it.
Supreme Court: the premise that the contractor has the priority to be compensated for the price of the project converted or auctioned is that the project is not suitable for conversion or auction according to its nature.