(Warranty money) According to Article 2 of the Interim Measures for the Management of Quality Margin of Construction Projects (No.7, Ministry of Construction and Ministry of Finance, 2005), the warranty money refers to the funds agreed by the employer and the contractor in the construction project contract and reserved from the payable project funds to ensure the contractor to repair the defects of the construction project during the defect liability period. Through the analysis of the definition of quality bond, we know that quality bond is used to ensure the contractor to repair the defects in the construction project during the defect liability period. Since it is a fund used to repair defects in construction projects during the defect liability period, the definition here is not appropriate, and it should be called "defect liability fund" more appropriately. According to the general understanding, the quality deposit corresponds to the warranty period, and the "defect liability fund" corresponds to the defect liability period, otherwise the concept will be easily confused.

2 quality guarantee period

(Warranty period) refers to the quality warranty period. According to Article 40 of the Regulations on Quality Management of Construction Projects, the minimum warranty period of construction projects under normal use conditions is (1) 50 years for foundation projects, foundation projects and main structure projects. (2) Roof waterproofing works, the leakage prevention of bathrooms, rooms and external walls with waterproof requirements, is 5 years; (3) The heating and cooling system consists of two heating periods and cooling periods; (4) Installation and decoration of electrical pipelines, water supply and drainage pipelines and equipment for two years. (5) The warranty period of other projects shall be agreed by the Employer and the Contractor. (six) the warranty period of the construction project is calculated from the date of completion and acceptance. According to the quality management regulations of construction projects, the warranty period can be 50 years, so should all or part of the expenses of basic projects and main structures be detained? Wait 50 years to settle accounts and refund the warranty money? Obviously inappropriate, but also significantly more than the current 20-year statute of limitations; So how to solve this problem? In fact, we only need to keep the concept of quality guarantee and add the definition of "defect liability fund" to solve this problem. The subject of "quality guarantee" can be retained, but it shall not be reserved from the project payment payable. It should be the expenses to be recovered after the limitation of the "defect liability period" stipulated by law, not the project payment payable that Party A can detain for 50 years. That is to say, the concept of "quality guarantee fund" is retained to coordinate with future legal proceedings and ensure that Party A has a clear legal cause of action when conducting litigation. The concept of "quality deposit" will not appear in the usual correspondence between the two parties until the quality of the project is excellent and the two parties have not completely broken up and gone to court.

3. Treatment methods for the defects liability period of the final payment of the project and beyond the defects liability period

According to Article 2 of the Interim Measures for the Management of Quality Margin of Construction Projects (J.J. (2005) No.7) issued by the Ministry of Construction and the Ministry of Finance, defects refer to the fact that the quality of construction projects does not meet the requirements of mandatory standards or design documents. The defects liability period is generally six months, twelve months or twenty-four months, which shall be specified by both parties in the contract, but the longest period shall not exceed twenty-four months. The defect liability period is different from the warranty period. The warranty period may be permanent, but the liability period for defects shall not exceed 24 months. Then, how to ensure that after the "defect liability fund" is returned, the construction unit is required to take responsibility for the quality of the basic projects, main structures and other projects with a warranty period of more than 24 months? At this time, what we need to pick up is a legal weapon and use the law to safeguard our rights and interests. In fact, according to the Interim Measures for the Management of Quality Margin of Construction Projects and the Regulations on Quality Management of Construction Projects, no matter whether the defect liability fund (which should no longer be called "quality margin") is returned, the construction unit cannot be exempted from the warranty responsibility for the project quality during the warranty period; This is a legal obligation that the construction unit must undertake.

4 deposit return

According to Article 9 of the Interim Measures for the Management of Quality Margin of Construction Projects (J.J. (2005) No.7) issued by the Ministry of Construction and the Ministry of Finance, during the defects liability period, the contractor shall perform the warranty responsibilities agreed in the contract, and after the expiration, the contractor shall apply to the employer for returning the margin. From what has been discussed above, we understand that it is wrong to return the "deposit". Since Party A's company has not withheld the deposit (the "defect liability fund" has been withheld), of course, it has not returned the deposit. To be precise, it should be the return of the defect liability fund.

5 "Waterproof deposit"

Many enterprises often encounter the problem of water leakage in their houses within 2-5 years. The original construction unit delayed its responsibilities for reasons such as leaving the company in another place or closing down, and was unwilling to cooperate with the maintenance, even if it was repaired. Sometimes Party A has to pay in advance and repair it himself. This not only increases the management cost of Party A, but also brings bad influence to Party A's reputation. Although Party A's units have legal weapons to protect their rights and interests, there are indeed many enterprises that finally get justice through litigation, but the long litigation time, litigation cost and quality responsibility make many Party A's units unwilling to completely leave and go to court. Therefore, when the "defect liability period" of up to 24 months expires and the "defect liability fund" is returned, Party A will often withhold part of the funds and demand that they be returned after the 5-year waterproof period expires. This part of the intercepted funds is called "waterproof deposit". As a common problem in engineering construction, leakage in building engineering is different from foundation and easy to occur. But for some unknown reason, when Party A and Party B signed the contract according to the model construction contract, there was no "waterproof deposit" clause. The construction unit must strongly oppose the "waterproof deposit" suddenly proposed by Party A, which needs to be deducted for five years, thus causing many disputes (the implementation of "the law must be clear" in civil law is different from the implementation of "the law can be done without prohibition").

6. Measures and methods to deal with the dispute over the final payment of the project

Although there is no definition of "waterproof deposit" in laws and regulations, since there are many phenomena of intercepting waterproof funds in engineering practice (let's call it waterproof deposit), laws and regulations should follow the trend and engineering practice, gradually improve and introduce the "waterproof deposit" clause, give a legal definition of the current dispute, and make an agreement on the proportion or amount of detention; Avoid the disconnection between laws and regulations and reality. This can not only protect the construction unit from being in a "weak position" at the final settlement; It can also enable Party A to take the initiative in repairing leaks within 2-5 years. So as to obtain good expectations recognized by both parties. According to the "consensus principle" of civil law, the proportion or specific amount of waterproof deposit agreed by both parties is the most appropriate. However, laws and regulations should give a general charging standard or amount range. Because too little amount can't offset the leakage compensation funds, too much amount leads to the construction unit occupying a lot of funds. According to the previous experience of project management and dispute resolution, the author thinks that laws and regulations can stipulate the waterproof deposit from the following points: the concept of "waterproof deposit" is clearly introduced and defined in the Interim Measures for the Management of Construction Project Quality Deposit and the Regulations on the Management of Construction Project Quality. In the construction project contract, the special clause of waterproof deposit is added. According to the project category, total contract price, water supply and drainage itemized expenses and other factors, both parties agree on the retention ratio or retention amount. According to the total contract price, the standard is 1 ~ 3%, and according to the water supply and drainage project, the standard is 10 ~ 30%, and the amount is10 ~ 800,000. Engineering leakage is a part of quality defects, and waterproof deposit is also a part of defect liability fund. If the defect liability is broken down into various subdivisions, in layman's terms, the waterproof deposit means that other parts of the defect liability will be returned after the expiration of the defect liability, but the waterproof part of the defect liability will be detained for five years before being returned. Therefore, the withholding amount of waterproof deposit shall not exceed the total liability for defects. Party A may detain the waterproof deposit, but shall not use it at will. Only when Party A's requirements for Party B's maintenance are not met can Party A withdraw this part of funds to arrange maintenance by itself. If the difference between the waterproof deposit finally refunded and the maintenance fee paid by Party A is insufficient, Party A has the right to recover from Party B. For the project that has been built or under construction but has not yet completed the price settlement, it is suggested that Party A and Party B agree to increase the waterproof clause through consultation. The waterproof quality deposit will be returned after the waterproof warranty period ends.

7 conclusion

Through the interpretation of the definition of laws and regulations and the analysis of engineering disputes, it is found that there are two main reasons for the dispute over the settlement of the final payment of the project: (1) The text description and definition of the deposit in the construction laws and regulations are inconsistent with the actual construction environment; ⑵ The laws and regulations are out of touch with the actual project, so it is necessary to introduce the "waterproof deposit" clause that conforms to the development trend of construction projects. If the editors of relevant engineering construction laws and regulations can improve from the above two aspects, they will certainly contribute their wisdom to reducing settlement disputes.

In addition, laws and regulations themselves come from practice and should be verified through practice. When our editors keep up with the development trend of the project and supplement and improve the laws and regulations, it is even more necessary for our front-line project builders and managers to constantly and timely feedback their personal practical experience; Only through joint efforts can we truly realize a harmonious China and a China ruled by law.

For more information about project/service/procurement bidding, and to improve the winning rate, please click on the bottom of official website Customer Service for free consultation:/#/? source=bdzd