Zhongcheng Qingtai. Real estate perspective: EPC general contract how to determine the jurisdiction of the court?
Published:
2020-12-18
EPC(Engineering Procurement Construction) refers to the project general contract entrusted by the owner to carry out the whole process of service for the design, procurement, construction and trial operation of the construction project in accordance with the contract. In recent years, government departments at all levels are pushing this project general contracting model, and EPC general contracting contract has become a hot topic in the engineering field.
Generally speaking, according to the Supreme People's Court's Application.<中华人民共和国民事诉讼法>The second paragraph of Article 28 of the Interpretation stipulates that "disputes over construction contracts of construction projects shall be governed by real estate disputes, I .e. the courts where the projects are located shall have exclusive jurisdiction". Under the EPC general contract mode, the contract content usually covers many contents such as engineering survey, design, construction, equipment procurement and commissioning, while the applicable principles of China's laws for disputes over survey, design, construction and procurement contracts are different, if the current Civil Procedure Law does not explicitly provide for exclusive jurisdiction over contractual disputes, the general principle of jurisdiction applies, I .e., the jurisdiction of the court at the place where the defendant is located or where the contract is performed. In this case, the EPC contract which integrates survey, design, construction and procurement, once a dispute occurs, how to determine the jurisdiction of the court?
Case one:
Shandong Linuo Solar Power Engineering Co., Ltd., Shandong Lipeng Co., Ltd. and Shandong Hongxiao Electric Power Engineering Co., Ltd. Civil Judgment in Dispute Case-First Instance No.:(2014) Ji Min Wu Chu Zi No. 20, Trial Court: Jinan Intermediate People's Court, Shandong Province; Case No. (2015) Lu Min Yi Zhong Zi No. 119, Trial Court: Shandong Higher People's Court.
Court judgment: from the content of the contract involved in the case, engineering design, engineering construction, etc. are all within the scope of Hongxiao company's contract. Article 269 of the the People's Republic of China Contract Law stipulates that a construction contract is a contract in which the contractor carries out the construction of the project and the contractor pays the price. Construction contracts include engineering survey, design and construction contracts. Accordingly, the contract in this case should be a construction contract. The trial court was correct in determining the cause of the case as a dispute over a construction contract. As the main content of the contract involved is the purchase and installation of equipment. Therefore, it is not improper to apply the relevant provisions of the Supreme People's Court's "Interpretation on the Application of Legal Issues in the Trial of Construction Contract Disputes" to handle this case.
Case two:
Jiangsu Dahai New Energy Technology Co., Ltd. and Guodian Henghua Wulat Houqi New Energy Co., Ltd. Civil Judgment on Disputes-Case No.:(2016) Beijing 02 Minchu No. 78, Trial Court: Beijing No.2 Intermediate People's Court.
Court decision: the case on the jurisdiction of the dispute, the plaintiff Dahai company that the above-mentioned contract belongs to the contract, the defendant Henghua company, Guodian company that the above-mentioned contract belongs to the construction contract. The trial court of the case, the Beijing No. 2 Intermediate People's Court, held: First of all, from the perspective of the scope of the contract, the scope of the project agreed in the "General Contract" extends to the power station as a whole, which belongs to the construction of power infrastructure. Secondly, from the point of view of the subject matter of the contract, the project is built directly on the ground, and the construction results belong to the real estate on the land. Thirdly, from the perspective of the contracting method, the EPC project contract adopts the integrated mode of design, procurement and construction. The contracting method has far exceeded the general equipment contracting, but includes large-scale construction. Then, from the contract price point of view, the total contract price of nearly 0.3 billion yuan, the scale of the project is huge and contains a large number of civil projects, does not meet the characteristics of ordinary contracts. Finally, from the point of view of project quality management and completion acceptance, the contract clearly stipulates that the project quality management and completion acceptance are carried out in accordance with the relevant national legal norms and technical norms of construction projects, and the project involved should belong to the construction project. Therefore, although the contract in question also reflects some general characteristics of the contract, the scope of the contract, the subject matter of the contract, the method of contracting, the contract price, the quality management of the project and the acceptance of completion all show the unique characteristics of the construction project. In contrast, the particularity of the construction contract is obviously better than the generality of the contract, and it is more appropriate to identify the legal relationship in this case as the construction contract.
Case three:
Civil Judgment on Dispute between Guodian Photovoltaic Co., Ltd. and Chaoyang Tianhua Sunshine New Energy Investment Co., Ltd. and Liaoning Xinda New Energy Investment Co., Ltd.-Case No.:(2016) Su 0282 Minchu No. 5076, Court of First Instance: Yixing Municipal People's Court; Case No. of second instance:(2017) Su 02 Min Jurisdiction No. 101, trial court: Wuxi Intermediate People's Court
Court judgment: the people's Court of Yixing City, Jiangsu Province in the first instance held that the reply of the Supreme people's Court on how to determine jurisdiction when the name and content of an economic contract are inconsistent stipulates that although the economic contract signed by the parties has a clear and standardized name, if the content of the rights and obligations agreed in the contract is inconsistent with the name, the nature of the contract shall be determined by the content of the rights and obligations agreed in the contract. In this case, Guodian Photovoltaic Company and Tianhua Sunshine Company entered into the "Liaoning Chaoyang 10MWp Project Photovoltaic Power Station EPC Project General Contract Business Contract", the contract agreed to perform the content, the total price composition, etc. clearly show, guodian Photovoltaic Company's main obligations are the survey design, manufacturing, procurement and supply of equipment and materials, sampling inspection of equipment and materials, construction, installation, commissioning test and inspection, completion, trial operation and defect elimination, etc. of 10MWp Photovoltaic Power Station, which conform to the legal characteristics of the contract. Tianhua Sunshine Company believes that the contract in this case is a construction contract in nature and should be under the jurisdiction of the place where the real estate is located.
However, the above opinion of the first instance was revised in the second instance. The Intermediate People's Court of Wuxi City, Jiangsu Province held that: in this case, Guodian Photovoltaic Company and Tianhua Sunshine Company entered into the "General Contract for EPC Project of Liaoning Chaoyang 10MWp Photovoltaic Power Station". From the name and content, the contract is a project contract, including construction, civil engineering, installation and construction, etc, combined with the evidence such as the project start-up report form, project supervision, project quality acceptance and evaluation project division report form, it can be determined that the nature of the dispute in this case belongs to the construction contract dispute. Construction contract disputes shall be governed by real estate disputes.
Opinion of our lawyers:
Generally speaking, when dealing with EPC contract disputes, the current court still mainly considers them as construction contract disputes, and the reasons are mainly explained from the perspectives of contract content, contract purpose, and claims., Not as other types such as contracting contracts; secondly, in individual cases, although some courts classify EPC general contracting contracts as construction engineering contracts at a broader level, however, the final division still determines the jurisdiction court according to the requirements of the construction contract.
In summary, the current laws and regulations do not clearly define the nature of the EPC project general contract, which leads to disputes over its jurisdiction court. By analyzing the case, the court will generally determine that it belongs to the construction contract according to the content of the contract in question, the purpose of the contract, etc., and then apply the provisions of exclusive jurisdiction of real estate. At the same time, there are also relevant cases that are found to belong to the construction project contract and the contract of contract. In practice, the parties can choose the court of jurisdiction or defense according to their own way.
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