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建设工程施工合同是承包人进行工程建设，发包人支付价款的合同。由于建设工程施工合同投资大、周期长、运作过程复杂等特点，签订一份规范、完整的建设工程承发包合同是至关重要的。然而，一份建设工程承发包合同即使签订得再好，签约前考虑的问题再全面，在履约过程中也不可避免要发生对合同事先约定事项进行必要的变更，这些都需要通过工程签证加以确认。同时，合同履行过程中，一旦出现一方未能按合同约定支付各种费用、完成一定工作或赔偿损失时，另一方则需要通过工程索赔来实现自己的权利。可以说，工程签证与工程索赔是建设工程承发包合同得以顺利履行和双方基于合同的利益得以全部实现的两条重要手段和措施。2004年9月29日，《最高人民法院关于审理建设工程施工合同纠纷案件适用法律问题解释》对这一问题进行了明确地规定，使工程签证与索赔有了法律的依据。该解释第十九条规定：“当事人对工程量有争议的，按照施工过程中形成的签证等书面文件确认。承包人能够证明发包人同意其施工，但未能提供签证文件证明工程量发生的，可以按照当事人提供的其他证据确认实际发生的工程量。”    该条司法解释提到了工程签证和工程索赔两个概念。工程签证与工程索赔是两个不同的概念，两者既有联系又有区别。深入研究签证与索赔理论，从而建立、健全相应的签证管理制度和索赔体系，对当前房地产业尤其是建设工程的健康发展有着十分重要的意义。    工程签证是工程承发包双方在施工过程中按合同约定或者施工惯例对支付各种费用、顺延工期、造价调整、赔偿损失等所达成的双方意思表示一致的补充协议。互相书面确认的签证即可成为工程结算或最终结算增减工程量及工程造价的凭据。    工程签证具有以下法律特征：  （一）工程签证是双方协商一致的结果，是双方法律行为。建设工程施工合同履行的可变更性及实际施工活动的变动性决定了合同双方必须对变更后的权利义务关系重新予以确认并达成一致意见。几乎所有的建设工程承包合同都对变更及如何达成一致意见作有规定。工程签证无疑是合同双方意思表示一致的结果。因此，工程签证也是建设工程施工合同中出现的新的补充合同，是整个建设工程施工合同的组成部分。基于这样的认识，工程签证一旦获得双方的确认，即成为规范合同双方行为的依据。  （二）工程签证涉及的利益已经确定，可直接作为工程结算的凭据。在工程结算时，凡已获得双方确认的签证，均可直接在工程形象进度结算或工程最终造价结算中作为计算工程量及工程价款的依据。  （三）工程签证是工程施工过程中的例行工作，一般不依赖于证据。工程施工过程中往往会发生不同于原设计、原计划安排的变化，这些变化对原合同进行相应的调整，是常理之中的例行工作。正是因为工程签证合同双方是在没有分歧意见的情况下，对这些调整用书面方式互相确认，双方认识一致，因此不需要什么证据。如，只要发包方对承包方提交的费用计算没有异议并加以签字确认，这份工程签证就成为日后工程结算的依据。对于工程签证如何进行，工程签证的主体、范围和程序，应当在工程承发包合同中加以明确。建设部和国家工商总局制定的《建设工程施工合同（示范文本）》（G F－1999－0201），对有关工程签证的规定散见于各个具体的条款中。如“第二部分 通用条款”中“23、合同价款及调整”第23.4条：“承包人应当在23.3款情况发生后14天，将调整原因、金额以书面形式通知工程师，工程师确认调整金额后作为追加合同价款，与工程款同期支付。工程师收到承包人通知后14天内不予确认也不提出修改意见，视为已经同意该项调整。”又如“25、工程量的确认”第25.1条：“承包人应按专用条款约定的时间，向工程师提交已完工程量的报告。工程师接到报告后7天内按设计图纸核实已完工程量（以下称计量），并在计量前24小时通知承包人，承包人为计量提供便利条件并派人参加。承包人收到通知后不参加计量，计量结果有效，作为工程价款支付的依据。”    工程索赔则是工程承包合同履行中，当事人一方由于另一方未履行合同所规定的义务或者出现了应当由对方承担的风险而遭受损失时，向另一方提出的赔偿要求的行为。工程索赔是一种赔偿请求的权利，这种权利在未获得双方协商一致或有关部门和机关的确认之前，不能作为工程结算的依据。应该说工程索赔其实就是在履约过程中按约定方式解决争议，故其主要依赖于索赔证据。这是由工程索赔的法律特点所决定的：    其一，与工程签证是双方法律行为特征不同，工程索赔是双方未能协商一致的结果，是单方主张权利的表示，是单方法律行为。工程索赔是工程合同的任何一方自认为理应获得支付各种费用、顺延工期、赔偿损失而未获得，向另一方提出应当获得的主张。因此，工程索赔不是合同双方意思表示一致的结果，而只是追求这种结果的手段。    其二，与工程签证涉及的利益已经确定的特点相比，工程索赔涉及的利益尚待确定，是一种期待权益。工程索赔款与签证后拖欠不付的拖欠款的性质不同，其是否应当支付尚待确定。证据确凿充分，方能获得确认，证据不足或并无证据佐证则难以确认。因此，工程索赔是一种单方的意愿和要求，未经认可，索赔所涉及的追加或赔偿款项，不能直接作为对方付款的凭据。作为一种期待权益，提出索赔的主张和请求需要有一个过程，通过一定的程序才有可能得到确认。    其三，与工程签证一般不依赖于其他证据不同，工程索赔要求未获确认的权利主张，必须依赖证据。工程索赔提出的前提是对施工过程中发生的情况变化、责任承担以及涉及费用增减的数量双方持有不同认识，一方对另一方提出的签证要求持有异议，双方未达成一致意见或者当时未履行签证手续，日后又达不成一致意见。在这种双方认识有分歧的情况下，一方坚持提出自己的主张，而要获得对方的确认，当然只能依靠确凿、充分的证据来证明自己提出的主张。这也是工程索赔能否成功实现的关键。正因如此，示范文本在其专列的“36、索赔”条款中明确规定：“当一方向另一方提出索赔时，要有正当索赔理由，且有索赔事件发生时的有效证据。”并在其36.2条款中对索赔期限、索赔通知及程序要求作出了明确的规定。

A construction contract is a contract in which the contractor carries out the project construction and the employer pays the price. Due to the characteristics of high investment, long cycle, and complex operation process in construction contracts, it is crucial to sign a standardized and complete construction contract. However, even if a construction project contracting contract is signed well and the issues considered before signing are comprehensive, it is inevitable that necessary changes to the pre agreed matters in the contract will occur during the performance process, which need to be confirmed through engineering visas. At the same time, during the performance of the contract, if one party fails to pay various fees, complete certain work or compensate for losses as agreed in the contract, the other party needs to realize its rights through engineering claims. It can be said that engineering visas and engineering claims are two important means and measures for the smooth performance of construction project contracting contracts and the full realization of the interests of both parties based on the contract. On September 29, 2004, the Interpretation of the Supreme People's Court on the Application of Law in the Trial of Construction Contract Disputes provided clear provisions on this issue, providing legal basis for engineering visas and claims. Article 19 of the interpretation stipulates: "If the parties have a dispute over the quantity of work, they shall confirm it in accordance with written documents such as visas formed during the construction process. If the contractor can prove that the employer agrees to the construction, but fails to provide visa documents to prove the quantity of work, they can confirm the actual quantity of work based on other evidence provided by the parties." This judicial interpretation mentions the concepts of engineering visa and engineering claim. Engineering visa and engineering claim are two different concepts, with both connections and differences. It is of great significance to conduct in-depth research on visa and claims theory, in order to establish and improve corresponding visa management systems and claims systems, for the healthy development of the current real estate industry, especially construction projects. Engineering visa is a supplementary agreement reached by both parties during the construction process, in accordance with the contract or construction practices, to pay various fees, extend the construction period, adjust the cost, and compensate for losses. A visa that is mutually confirmed in writing can serve as evidence for project settlement or final settlement of changes in project quantity and project cost. The engineering visa has the following legal characteristics: (1) The engineering visa is the result of mutual agreement and is a legal act of both parties. The modifiability of the performance of construction contracts and the variability of actual construction activities determine that both parties to the contract must reconfirm and reach a consensus on the rights and obligations after the changes. Almost all construction contract agreements have provisions for changes and how to reach consensus. The engineering visa is undoubtedly the result of mutual agreement between both parties in the contract. Therefore, the engineering visa is also a new supplementary contract that appears in the construction contract and is an integral part of the entire construction contract. Based on this understanding, once the engineering visa is confirmed by both parties, it becomes the basis for regulating the behavior of both parties in the contract. （2） The benefits involved in the engineering visa have been determined and can be directly used as evidence for project settlement. When settling the project, any visa confirmed by both parties can be directly used as the basis for calculating the quantity and price of the project in the project image progress settlement or the final project cost settlement. （3） Engineering visa is a routine task during the construction process and generally does not rely on evidence. During the construction process, there are often changes that are different from the original design and plan arrangements. These changes make corresponding adjustments to the original contract, which is a routine work. It is precisely because the two parties to the engineering visa contract confirm these adjustments in writing without any disagreement, and both parties have a consensus, so no evidence is needed. For example, as long as the contracting party has no objection to the cost calculation submitted by the contractor and signs for confirmation, this engineering visa will become the basis for future engineering settlement. The main body, scope, and procedure of engineering visa should be clearly defined in the engineering contract. The Ministry of Construction and the State Administration for Industry and Commerce have formulated the "Construction Project Construction Contract (Demonstration Text)" (GF-1999-20201), which scattered provisions on engineering visas in various specific clauses. As stated in Article 23.4 of "23. Contract Price and Adjustments" in "Part 2 General Terms": "The contractor shall notify the engineer in writing of the reason and amount for the adjustment within 14 days after the occurrence of the situation in Article 23.3. After the engineer confirms the adjustment amount, it shall be regarded as an additional contract price and paid at the same time as the project payment. If the engineer does not confirm or provide any modification suggestions within 14 days after receiving the contractor's notice, it shall be deemed that he has agreed to the adjustment." For example, Article 25.1 of "25. Confirmation of Engineering Quantity" states: "The contractor shall submit a report on the completed engineering quantity to the engineer at the time specified in the special terms. The engineer shall verify the completed engineering quantity (hereinafter referred to as measurement) according to the design drawings within 7 days after receiving the report, and notify the contractor 24 hours before measurement. The contractor shall provide convenient conditions for measurement and send personnel to participate.". The contractor shall not participate in the measurement after receiving the notice, and the measurement results shall be valid as the basis for payment of the project price Engineering claim refers to the act of one party claiming compensation from the other party during the performance of an engineering contract when they suffer losses due to the other party's failure to fulfill the obligations stipulated in the contract or the occurrence of risks that should be borne by the other party. Engineering claim is a right to claim compensation, which cannot be used as the basis for engineering settlement without mutual agreement or confirmation from relevant departments and agencies. It can be said that engineering claims are actually resolving disputes in the agreed manner during the performance process, so they mainly rely on claim evidence. This is determined by the legal characteristics of engineering claims: firstly, unlike engineering visas, which are the legal behavior characteristics of both parties, engineering claims are the result of the failure of both parties to reach a consensus, a unilateral claim of rights, and a unilateral legal act. Engineering claim is a claim made by either party to an engineering contract who considers themselves entitled to payment of various expenses, extension of the construction period, or compensation for losses, but fails to do so, to the other party. Therefore, engineering claims are not the result of mutual agreement between the parties to the contract, but rather a means of pursuing such results. Secondly, compared to the characteristics where the benefits involved in engineering visas have already been determined, the benefits involved in engineering claims are yet to be determined, which is an expected benefit. The nature of engineering claims and outstanding payments after visa application is different, and whether they should be paid remains to be determined. Confirmation can only be obtained if the evidence is conclusive and sufficient, but it is difficult to confirm if there is insufficient or no evidence to support it. Therefore, engineering claims are a unilateral willingness and demand, and without recognition, the additional or compensation amount involved in the claim cannot be directly used as proof of payment by the other party. As a form of expected rights, making claims and requests requires a process that can only be confirmed through certain procedures. Thirdly, unlike engineering visas that generally do not rely on other evidence, unconfirmed claims for engineering claims must rely on evidence. The premise for filing an engineering claim is that both parties have different understandings of the changes in circumstances, responsibilities, and the amount of cost increase or decrease that occurred during the construction process. One party has objections to the visa requirements proposed by the other party, and the two parties have not reached a consensus or have not fulfilled the visa procedures at that time, which may result in a later disagreement. In such a situation where there are differences in understanding between the two parties, one party insists on presenting their own claim, and in order to obtain confirmation from the other party, of course, they can only rely on conclusive and sufficient evidence to prove their proposed claim. This is also the key to the successful implementation of engineering claims. Therefore, the demonstration text clearly stipulates in its special section "36. Claims" that "when one party makes a claim against the other party, there must be legitimate reasons for the claim and valid evidence at the time of the claim event." In its 36.2 section, clear provisions are made for the claim deadline, claim notice, and procedural requirements.