专业团队

　　建设工程施工合同纠纷诉讼

　当前建筑施工企业承接业务的方式多种多样，如总承包，联合承包等。加上转包、违法分包、挂靠等，致使施工企业在诉讼中如何确认诉讼主体、诉讼标的、合同效力和裁判执行等各方面带来一定困难。

一、诉前准备

　　一企业应当认识到，平时经营活动是要为今后的可能诉讼收集证据，这样管理活动就规范。民事诉讼法规定"谁主张，谁举"。建设工程合同纠纷的核心证据是建设丁程合同本身，《合同法》规定，建设施工合同应采用书面形式。合同的书面形式包括书面合同，但不限于书面合同。双方协商同意并签字认可的有关修改合同文件、洽谈记录、会议纪要、电报以及业务联系单、工程决算审定书等都是合同组成部分，是有效证据。实务操作中，应让意关键证据的保全。合同履行中，因发包人资金不到位，造成停工，在发包人不愿出具任何书面凭证情况下，为了防范于未然，承包人(chengbaoren)可书面催款。主要内容为"不付工程款，即将停工。而催告款内容交公证处核对，在其监督下发送给发包单位，最后由公证处出具公证文书。

　　二企业应选择起诉的最佳时机，最佳时机包括如下几个条件。1.涉案工程已验收并交付使用;2.双方已经结算并签字盖章、

二、诉讼主体确定

　　一一般而言，建设工程合同纠纷的当事人指发包人与承包人(chengbaoren)。企业可按合同约定确定相应的对方当事人。但企业本身主体又较为复杂，没有子公司、分公司、工程处、项目经理部：其中子公司具备独立法人资格，有权成为民事诉讼的原告或被告。分公司若领有工商部门并l照的，属厂民事诉讼法规定的"其他组织"，也享有民诉土体资格。而了程处是否能成为民诉主体，电看是否经工商部门登记：而项目经理不具法人资格，也非独立核算的内部机构，无权以自己的名义起诉与被诉：另施上企业名称变更情况较多，诉讼中应以变更后的经济实体为诉讼当事人，并向法律提供工商部门变更登记资料。被告主体错误后，在起诉标的较大情况下，原告人与其撤诉后重新起诉。倒不如让主审法院驳回本方诉请，原因在于原告撤诉还需承担50%的受理费。而裁定驳回时原告只需承担受理费50兀。原告起诉时，如被告属企业法人时，原告不提供企业法人营业执照不影响法院审理判决;如被告属企业法人分支机构，则原告应提交被告已经工商部门注册的依据，否则法院很可能以"原告末充分举证证明被告已经工商部门登记，从而无法证明被告具合格主体资格"为由，驳回原告起诉、

　　二工程转包的诉讼主体确认。

　　1.转包后发生拖欠工程款纠纷的处理转包时，经发包人同意的，属于合同法规定的合同转让：牧应将实际施工人列为原告，发包人列为被告，合同承包人不列为当事人。转包时，未经发包人同意的，实际施工人是原告，承包人是被告;发包人一般不列为当事人。

　　2.承包人将其承包的建设厂程合同转包给实际施工人后，发生质量纠纷处理：发包人是原告，承包人、实际施工人员是共同被告，共互质量方面的连带责任。

　　三工程挂靠的诉讼主体确认。

　　1.工程欠款纠纷。应当以实际施工人、被桂靠单位为共同原告。若被挂靠单位不愿起诉的，实际施上人可单独起诉。

　　2.工程质量纠纷。应当以实际施工人，被挂靠单位为共同被告;两单位对质量责任承担连带责任。

　　四联合承包的诉讼主体确认：两个以上的承包人联合承包工程，由其中一方与发包人签订建设工程合同而发生纠纷，则其他联合方应列为本案共同原被告。

　　五合作建设，合作开发的诉讼主体确认;若合作方对合作标的享有共同权益的，且合作一方与承包人签订承包合同纠纷而诉讼的，其他合作建设方为共同原被告。

　　六涉及分包的主体确认：因分包单位原因致使建设单位发生损失的，建设单位叫以以总包单位为被告，直接向总包单位索赔。而总包单位承担责任后，可以以有责任的分包单位为对方当事人，另行提起诉讼。

　　七产品质量侵权的主体确定：工程质量不合格造成第三人财产人身损害的，受害人为原告，而确认对方当事人时应区分涉案工程是否已交付。在工程交付前，以承包人为被告;在工程支付后，以发包人为被告。

　　八施工人侵权的主体确认：施工期间因承包人过错致人损害，如在公共场所，道旁或地上挖坑，安装地下设施，未设明显标志和未采取安全措施致第三人损害的，以承包人为被告，而发包人不列为被告。

　　三、诉讼请求的确立与法院主管管辖

　　诉讼请求确立的基础是合同价款。而不同价款方式约定，导致最终诉讼请求不同。合同价款方式有固定价格，可调整价格，成本加酬金三种。在工程总造价巳定，对方陆续交付部分工程款情况下。若我们缺少对方实欠工程款的证据.可以以总造价为标的起诉之。庭审叫被告为了减轻自己民事责任，必然提供相应证据证明具已付工程款，最终法院会按双方证据综合裁判。

　　二基于施工企业被动交易地位，现行立法对施工企业权益保护有所加强。《合同法》第286条规定：建设厂程承包人享有工程折价拍卖后的优先受偿权。2002年6月最高院作出了关于建设工程价款优先受偿的批复。根据该批复规定，施工企业行驶优先受偿权期限从工程竣工之日或合同约定竣工日起算只有6个月，而行使该权利往往通过法院实现。因而施工企业在确认诉请时，特别应加卜一条"请求判令原告享有对涉案工程的优先受偿权"。

　　三级别管辖变通：根据民事诉讼法第25条规定，当事人约定不得违反级别管辖。但实际操作中，仍可灵活变通。可通过虎增标的额以提高级别管辖;也可以分解标的，立案后再追加请求的方案将原本由中院管辖案件交由基层法院管辖。

四、调解策略

　　调解意味着双方在利益上的妥协、让步。作为原告人最担心的是，原告人在利益上作出币大让步后，被告人又不履行和解协议，致使原告人已放弃的诉请无法恢复。《民法通则》、《合同法》中关于附条件法律行为的相应规定给我们带来了一定启发。若被告当前无法足额清偿，但之后就可能有设备变卖款，拆迁补助款和保险赔款等未来现金流入。可考虑分期归还方案：在制定方案时我们可巧妙地设计附条件成就条款。第一期付款既要体现我方柞出重大让步，又要让被告实际上无法完全履行，追加一句话："若一期不履行，原告可全额申请执行"。这就是附条件法律行为的体现。也有这样一种情况，被告在较长时间内无可供履行财产，而又愿意和解，为表诚意，我方必须让一步。一般而言，调解协议多是这样表述："被告欠原告本金x元.利息Y元;原告自愿放弃利息Y元;而本金x元应在x年x月x日前付清"，如此写法可能导致在被告不完全履行协议时，利息请求无法恢复。故我方应调整调解协议的书写顺序。"被告欠原告本金X元，利息Y元;其中本金X元由被告X年X月X日之前付清;若被告完全履行本协议，原告自愿放弃利息Y元。"

Litigation of construction contract disputes

There are various ways for construction enterprises to undertake business, such as general contracting, joint contracting, etc. Combined with subcontracting, illegal subcontracting, and affiliation, construction enterprises face certain difficulties in determining the litigation subject, litigation subject, contract effectiveness, and judgment execution in litigation.

1、 Pre litigation preparation

A company should recognize that its normal business activities are to collect evidence for possible litigation in the future, so that its management activities can be standardized. The Civil Procedure Law stipulates that "whoever claims shall provide evidence.". The core evidence of construction contract disputes is the construction project contract itself. According to the Contract Law, construction contracts should be in written form. The written form of a contract includes a written contract, but is not limited to a written contract. The modified contract documents, negotiation records, meeting minutes, telegrams, business contact forms, and engineering final account approval documents agreed upon and signed by both parties are integral parts of the contract and valid evidence. In practical operations, it is important to ensure the preservation of critical evidence. In the performance of the contract, if the employer's funds are not sufficient, resulting in work stoppage, and the employer is unwilling to provide any written evidence, in order to prevent unforeseen circumstances, the contractor (chengbaoren) may request payment in writing. The main content is that if the project payment is not made, the project will be suspended soon. The content of the reminder payment will be verified by the notary office, and under their supervision, it will be sent to the contracting unit. Finally, the notary office will issue a notarized document.

The second enterprise should choose the best time to sue, which includes the following conditions. 1. The involved project has been accepted and delivered for use; 2. Both parties have settled and signed and stamped

2、 Determination of litigation subject

Generally speaking, the parties involved in construction contract disputes refer to the employer and the contractor (chengbaoren). Enterprises can determine the corresponding counterparty according to the contract agreement. But the main body of the enterprise itself is relatively complex, without subsidiaries, branches, engineering departments, or project management departments: among them, subsidiaries have independent legal personality and have the right to become plaintiffs or defendants in civil litigation. If a branch has obtained a license from the Ministry of Industry and Commerce, it belongs to the "other organizations" stipulated in the Civil Procedure Law of the factory and also enjoys the qualification of civil litigation. Whether the project manager can become the subject of civil litigation depends on whether it has been registered with the industry and commerce department. The project manager does not have legal personality and is not an independent accounting internal organization, and has no right to sue or be sued in his own name. In addition, there are many changes in the company name, and the changed economic entity should be the litigant in the lawsuit, and the registration information of the industry and commerce department should be provided to the law. After the defendant made an error in the subject matter of the lawsuit, the plaintiff withdrew the lawsuit and re sued it. It is better to have the presiding court reject our application, as the plaintiff needs to bear 50% of the acceptance fee for withdrawing the lawsuit. When the ruling is rejected, the plaintiff only needs to bear the acceptance fee of 50 mu. When the plaintiff sues, if the defendant is a corporate entity, the plaintiff's failure to provide the business license of the corporate entity does not affect the court's judgment; If the defendant belongs to a branch of a corporate legal entity, the plaintiff should submit the basis for the defendant's registration with the industrial and commercial department. Otherwise, the court may reject the plaintiff's lawsuit on the grounds that "the plaintiff has not provided sufficient evidence to prove that the defendant has been registered with the industrial and commercial department, and therefore cannot prove that the defendant has qualified as a subject."

Confirmation of the litigation subject for the subcontracting of the second project.

1. Handling of disputes over overdue project payments after subcontracting. When subcontracting, with the consent of the employer, it is considered a contract transfer under the Contract Law: Mu should list the actual construction worker as the plaintiff, the employer as the defendant, and the contract contractor as not a party. When subcontracting, without the consent of the employer, the actual construction party is the plaintiff and the contractor is the defendant; The employer is generally not listed as a party.

2. After the contractor subcontracts the construction project contract to the actual construction personnel, any quality dispute resolution occurs: the employer is the plaintiff, and the contractor and the actual construction personnel are joint defendants, jointly responsible for quality.

Confirmation of the litigation subject associated with the three projects.

1. Engineering debt disputes. The actual construction personnel and the unit being relied upon should be the joint plaintiffs. If the affiliated unit is unwilling to file a lawsuit, the actual executor may file a separate lawsuit.

2. Engineering quality disputes. The actual construction personnel and affiliated units should be the joint defendants; The two units shall bear joint and several liability for quality responsibility.

Confirmation of the litigation subject of four joint contracting: If two or more contractors jointly contract a project and one party signs a construction project contract with the employer, and a dispute arises, the other joint parties should be listed as the joint plaintiff and defendant in this case.

Confirmation of litigation subjects for cooperative construction and development; If the cooperating party enjoys common rights and interests in the cooperative subject matter, and if one cooperating party disputes a contract with the contractor, the other cooperating construction parties shall be the joint plaintiff and defendant.

Confirmation of the subject involved in subcontracting: If the construction unit suffers losses due to the reasons of the subcontracting unit, the construction unit shall take the general contracting unit as the defendant and directly claim compensation from the general contracting unit. After the general contracting unit assumes responsibility, it may file a separate lawsuit with the responsible subcontractor as the opposing party.

The determination of the subject of product quality infringement: If the substandard engineering quality causes property and personal injury to a third party, the victim shall be the plaintiff, and when confirming the other party, it should be distinguished whether the involved project has been delivered. Before the delivery of the project, the contractor shall be the defendant; After the project payment, the employer shall be the defendant.

Confirmation of the subject of infringement by construction workers: During the construction period, if the contractor causes damage to people due to their fault, such as digging pits in public places, roadsides or on the ground, installing underground facilities, not setting clear signs or taking safety measures, causing damage to third parties, the contractor shall be the defendant, and the employer shall not be listed as the defendant.

3、 Establishment of Litigation Claims and Court Jurisdiction

The basis for establishing a lawsuit is the contract price. However, different payment methods result in different final litigation claims. There are three types of contract price methods: fixed price, adjustable price, and cost plus compensation. When the total cost of the project has been determined and the other party has gradually delivered part of the project payment. If we lack evidence that the other party actually owes the project payment, we can sue based on the total cost. The court trial requires the defendant to provide corresponding evidence to prove that the project payment has been made in order to reduce their civil liability. The final court will make a comprehensive judgment based on the evidence of both parties.

Based on the passive trading position of construction enterprises, the current legislation has strengthened the protection of the rights and interests of construction enterprises. Article 286 of the Contract Law stipulates that the construction contractor shall have the priority right to compensation after the project is auctioned at a discounted price. In June 2002, the Supreme People's Court issued an approval on prioritizing the payment of construction project prices. According to the approval regulations, the period for construction enterprises to exercise their priority compensation right is only 6 months from the date of project completion or the completion date specified in the contract, and the exercise of this right is often realized through the court. Therefore, when confirming the lawsuit, the construction enterprise should especially add a request to order the plaintiff to enjoy the priority right to compensation for the involved project.

Third level jurisdiction flexibility: According to Article 25 of the Civil Procedure Law, the parties agree not to violate the level of jurisdiction. But in practical operation, it can still be flexible and adaptable. The level of jurisdiction can be improved by increasing the amount of tiger bidding; It is also possible to decompose the subject matter and submit the original case under the jurisdiction of the Intermediate People's Court to the jurisdiction of the grassroots court by adding a request after filing the case.

4、 Mediation strategy

Mediation means compromise and concession of interests between both parties. As the plaintiff, the biggest concern is that after the plaintiff makes significant concessions in terms of interests, the defendant fails to fulfill the settlement agreement, resulting in the inability to recover the plaintiff's abandoned lawsuit. The corresponding provisions on conditional legal acts in the General Principles of Civil Law and the Contract Law have brought us some inspiration. If the defendant is currently unable to fully repay the debt, there may be future cash inflows such as equipment sales proceeds, demolition subsidies, and insurance claims. Consider installment repayment plan: When formulating the plan, we can cleverly design conditional achievement clauses. The first installment payment should not only reflect our significant concessions, but also make it impossible for the defendant to fully fulfill. An additional sentence should be added: "If the first installment is not fulfilled, the plaintiff can apply for full execution.". This is a manifestation of conditional legal acts. There is also a situation where the defendant has no property available for performance for a long period of time and is willing to settle. To show sincerity, we must compromise. Generally speaking, mediation agreements are often expressed as follows: "The defendant owes the plaintiff a principal of X yuan and an interest of Y yuan; the plaintiff voluntarily waives the interest of Y yuan; and the principal of X yuan should be paid before X year, X month, X day." This wording may result in the inability to recover interest claims when the defendant fails to fully fulfill the agreement. Therefore, we should adjust the writing order of the mediation agreement. "The defendant owes the plaintiff a principal of X yuan and an interest of Y yuan; the principal of X yuan shall be paid by the defendant before X month X day of X year; if the defendant fully fulfills this agreement, the plaintiff voluntarily waives the interest of Y yuan."