Construction Environmental Capital Law Review (Phase 6)-Analysis of Issues Related to Comprehensive Acceptance and Comprehensive Acceptance Filing of Real Estate Projects

[abstract] on November 25, 2019, the Department of Housing and Construction of Shandong Province, the Department of Natural Resources and other seven departments jointly issued the measures for the Administration of the Comprehensive acceptance of the completion of Real Estate Development projects in Shandong Province (Lu Jianfang Zi [2019] No. 34), which will be implemented on January 1, 2020. The comprehensive acceptance and filing of real estate development projects involves the administrative supervision of administrative departments, the delivery of commercial housing and the determination of legal liability for overdue delivery, which is worth discussing. This paper will analyze the comprehensive acceptance and filing of the completion of real estate development projects from the above aspects.

[Key words] the completion of the comprehensive acceptance, the completion of the comprehensive acceptance of the record, administrative supervision, commercial housing delivery
 

Relevant Provisions on Comprehensive Acceptance and Filing of 1. Completion

(I) national regulations

On November 13, 1993, the Ministry of Construction promulgated the "Administrative Measures for the Comprehensive Acceptance of the Completion of Urban Residential Districts" (Construction Law [1993] No. 814) for the first time stipulated the comprehensive acceptance of new residential quarters with a construction land scale of more than 20000 square meters and the completion of groups And the filing system.

On July 20, 1998, Articles 17 and 18 of the Regulations on the Administration of Urban Real Estate Development and Operation (Order No. 248 of the State Council) promulgated by the State Council stipulate that real estate development projects can be delivered for use only after they have been completed and passed the acceptance check; those that have not been accepted or failed the acceptance check shall not be delivered for use. When a group real estate development project such as a residential district is completed, comprehensive acceptance shall be carried out. Residential quarters and other groups of real estate development projects to implement phased development, can be phased acceptance.

On May 19, 2004, Item 83 of the Decision of the State Council on the Third Batch of Cancellation and Adjustment of Administrative Examination and Approval Projects (No. 16 [2004] of the State Council) canceled the comprehensive acceptance of the completion of real estate development projects in residential quarters and other groups.

On February 18, 2016, the measures for the Administration of Comprehensive acceptance of the completion of Urban Residential areas (Jianfa [1993] No. 814) was declared invalid by the Ministry of Housing and Urban-Rural Development issued by the Ministry of Housing and Urban-Rural Development (announcement No. 1041 of the Ministry of Housing and Urban-Rural Development).

On March 19, 2018, the State Council promulgated the regulations on the Management of Urban Real Estate Development and Operation after the second revision, which deleted articles 17 and 18 of the original regulations, that is, deleted the provision that the completion of real estate development projects such as residential quarters should be subject to comprehensive acceptance, and the delivery can only be made after the completion of comprehensive acceptance. Article 17 of the revised regulations stipulates that the completion of real estate development projects shall be completed in accordance with the provisions of the regulations on the quality management of construction projects before they can be delivered for use.

(II) Provisions of Shandong Province

On November 25, 2004, the Standing Committee of Shandong Provincial People's Congress promulgated Article 34 of the regulations on the management of urban real estate development and operation of Shandong Province (the second amendment), which stipulates that after the completion of the development project, the development enterprise must carry out the comprehensive acceptance of the project. For projects developed in stages, the development enterprise may carry out acceptance in stages. The development project can be delivered for use only after it has passed the acceptance check; if it fails the acceptance check, the development enterprise shall not deliver it, and the purchaser and manager shall have the right to refuse to accept the use. The development enterprise shall, within 15 days from the date of comprehensive acceptance, submit the comprehensive acceptance report of the development project to the competent development department for the record.

On June 16, 2009, the Shandong Provincial Department of Housing and Urban-Rural Development promulgated the "Shandong Province Real Estate Development Project Completion Comprehensive Acceptance Filing Measures" (Lu Jianfa [2009] No. 11), Article 7 of the 5. 6. stipulates that after the completion of the real estate development project, the development enterprise shall organize relevant departments and units for comprehensive acceptance; after the completion acceptance is qualified, hold the completion comprehensive acceptance report to the real estate development administrative department for comprehensive acceptance filing procedures; the development project can be delivered for use only after it has passed the comprehensive acceptance; if it fails the comprehensive acceptance, it shall not be delivered for use. When the development enterprise delivers the commercial housing, it shall provide the buyer with the record certificate of the comprehensive acceptance of the completion of the real estate development project.

On November 25, 2019, the Shandong Provincial Department of Housing and Urban-Rural Development, the Department of Natural Resources and other seven departments jointly issued the ''Shandong Province Real Estate Development Project Completion Comprehensive Acceptance and Filing Management Measures'' (Lu Jianfang Zi [2019] No. 34), which stipulates the city The comprehensive acceptance and filing of real estate development projects are completed, and it is stipulated that "real estate development projects can only be delivered for use after they have passed the comprehensive acceptance and obtained the filing procedures".

It should be noted that on March 19, 2018, the State Council revised the regulations on the Management of Urban Real Estate Development and Operation, deleting the relevant provisions on the comprehensive acceptance of the completion of group real estate development projects, but the regulations on the Management of Urban Real Estate Development and Operation of Shandong Province have not been revised. From a legal point of view, the "Regulations on the Management of Urban Real Estate Development and Operation in Shandong Province" should also be revised accordingly, but from the reality, the seven departments of Shandong Province jointly issued the "Shandong Province Real Estate Development Project Completion Comprehensive Acceptance Record Management Measures" (Lu Jianfang Zi [2019] No. 34) applicable to real estate development projects in Shandong Province, directly affecting the completion acceptance of real estate development projects and subsequent registration procedures, therefore, development enterprises should still comply with the implementation in practice.

Whether the comprehensive acceptance and filing of 2. completion belong to administrative license

For the comprehensive acceptance of completion, Article 18 of the regulations on the management of urban real estate development (1998) (Order No. 248 of the State Council) stipulates that "the completion of group real estate development projects such as residential quarters shall be carried out in accordance with the provisions of Article 17 of these regulations and the following requirements......", according to the "Decision of the State Council on the Third Batch of Cancellation and Adjustment of Administrative Examination and Approval Items" (Guo Fa [2004] No. 16) issued by the State Council on May 19, 2004, item 83 of the decision clearly cancels the administrative examination and approval item of "comprehensive acceptance of completion of real estate development projects in residential quarters and other groups" stipulated in the Regulations on the Administration of Urban Real Estate Development and Management. Therefore, the completion of the comprehensive acceptance does not belong to the administrative license.

For the completion of the comprehensive acceptance of the record belongs to the issue of administrative licensing, theory and practice is still controversial. The author believes that the completion of the comprehensive acceptance of the record does not belong to the administrative license. The reason is that Article 49 of the Regulations on the Quality Management of Construction Projects stipulates that "the construction unit shall, within 15 days from the date when the construction project is completed and accepted, submit the construction project completion acceptance report and the approval issued by the planning, public security and fire protection, environmental protection and other departments. Documents or permission to use documents are reported to the construction administrative department or other relevant departments for the record. If the construction administrative department or other relevant departments find that the construction unit has violated the relevant state regulations on the quality management of construction projects in the process of completion acceptance, it shall be ordered to stop using it and reorganize the completion acceptance." It can be seen from the above provisions that the completion acceptance of the construction project is organized by the construction unit, and whether the completion acceptance is qualified or not shall be determined by the acceptance team in accordance with the relevant regulations and procedures. Whether it is the completion acceptance record or the completion comprehensive acceptance record, the filing behavior of the filing authority is the registration and reference behavior of the completion acceptance report and other construction materials, and is not the requirement of the completion acceptance. The competent department finds that the illegal problems existing in the process of completion acceptance of the construction unit should be dealt with, but this kind of treatment is independent of the filing behavior, and a new administrative act is made for the illegal problem. The filing behavior itself does not create or eliminate the relationship of rights and obligations.

Beijing No. 1 Intermediate People's Court (2017) Beijing 01 Line Final No. 441 Judgment: "The completion acceptance filing is an act of the administrative authority to collect information about the construction of the project for the purpose of supervision. Whether the completion acceptance is qualified or not is not based on the filing. As an effective requirement, the filing behavior has no actual impact on the rights and obligations of citizens, legal persons or other organizations. The lawsuit filed by the appellant against Filing No. 959 does not fall within the scope of the administrative litigation of the people's court according to law." The case states that the completion acceptance record does not belong to the administrative licensing act, and the completion comprehensive acceptance record should not belong to the administrative licensing act.

The impact of comprehensive acceptance and filing of 3. completion on the delivery of commercial housing and the determination of legal liability for overdue delivery of housing.

Regarding the delivery conditions of commercial housing, Article 279 of the Contract Law, Article 61 of the Construction Law, Article 27, Paragraph 2 of the Urban Real Estate Management Law, and Article 16 of the Regulations on the Quality Management of Construction Projects all stipulate that "the completion of the project can only be delivered for use after passing the acceptance". When the Regulations on the Management of Urban Real Estate Development and Operation were revised in 2018, Articles 17 and 18 of the original regulations were deleted, that is, the completion of residential communities and other group real estate development projects should be subject to comprehensive acceptance, and the completion of comprehensive acceptance can be delivered. Provisions. It can be seen that laws and administrative regulations unanimously stipulate that the legal conditions for the delivery of commercial housing are "qualified for completion and acceptance". The legal conditions for the delivery of commercial housing, whether it is the completion acceptance or the completion acceptance record, do not involve the completion of comprehensive acceptance and filing issues. In practice, the delivery conditions stipulated in the commercial housing sales contract are often completed and accepted for the record, and some local administrative supervision departments also require development enterprises to obtain the completion comprehensive acceptance record before delivering the commercial housing. For example, Article 12 of the "Shandong Province Real Estate Development Project Completion Comprehensive Acceptance Record Management Measures" (Lu Jianfang Zi [2019] No. 34) stipulates: "Real estate development projects can be delivered for use only after they have passed the comprehensive acceptance and obtained the filing procedures..." Article 13 stipulates: "When a development enterprise delivers a commercial house, it shall publicize the comprehensive acceptance record certificate for the completion of a real estate development project in a prominent position on the delivery site." Article 19 stipulates: "if a development enterprise fails to obtain the filing formalities for the comprehensive acceptance of the completion of a real estate development project and delivers it for use without authorization, it shall be punished by the competent department in accordance with the regulations on the Management of Urban Real Estate Development and Operation of Shandong Province and other laws and regulations." based on the above situation, there are the following problems in practice:

(I), the delivery condition stipulated in the commercial housing sales contract of development enterprises in Shandong Province is "completion acceptance". Although it is a legal and effective agreement, there is a risk of administrative punishment.

According to the above-mentioned laws and regulations, laws and administrative regulations unanimously stipulate that the legal condition for the delivery of commercial housing is "completion acceptance". The "Shandong Province Real Estate Development Project Completion Comprehensive Acceptance Record Management Measures" is neither a law nor an administrative regulation. Article 12 "Real estate development projects can be delivered for use only after they have passed the comprehensive acceptance and obtained the filing procedures..." The provisions are not effective provisions. If the delivery conditions stipulated in the commercial housing sales contract are "completion acceptance" and do not violate the validity of the contract, the contract is a valid contract.

However, the "Shandong Province Real Estate Development Project Completion Comprehensive Acceptance Record Management Measures" is a local administrative supervision method for the relevant provisions of the "Comprehensive Acceptance Record". If the development enterprise fails to obtain the comprehensive acceptance record procedures for the completion of the real estate development project and delivers it for use without authorization, the development enterprise will be Subject to the corresponding administrative punishment of the administrative department.

(II) the delivery conditions stipulated in the commercial housing sales contract are "to obtain the completion of the comprehensive acceptance record", but the actual delivery did not obtain the comprehensive acceptance record, affecting the determination of the legal liability for overdue delivery.

If the commodity house does not meet the delivery conditions agreed in the contract, the buyer has the right to refuse to accept the house. However, in practice, due to various reasons, some buyers often receive houses when they do not meet the delivery conditions agreed in the contract. At this time, the determination of whether or not it constitutes an overdue delivery and the responsibility needs to be determined by the circumstances. If the commercial housing does not meet the agreed delivery conditions, but has reached the statutory minimum delivery conditions, the actual housing behavior of the buyer can be identified as a change in the delivery conditions of the house between the buyer and the seller. In this case, there is no problem of overdue delivery. If the commercial housing neither meets the delivery conditions agreed in the contract, nor meets the legal delivery conditions, even if the buyer receives the house, although the commercial housing has been delivered at this time, the development enterprise should still bear the liability for breach of contract for overdue delivery.

To sum up, the completion comprehensive acceptance and the completion comprehensive acceptance record are not the administrative licensing acts of the relevant administrative departments, and the completion comprehensive acceptance record is only the informative record of the administrative department. At the same time, the comprehensive acceptance of completion and the filing of comprehensive acceptance of completion are not legal conditions for the delivery of commercial housing. The administrative measures for the filing of comprehensive acceptance of completion of real estate development projects in Shandong Province (Lu Jianfang Zi [2019] No. 34) is only the administrative supervision regulations made by the administrative supervision department for real estate development and operation enterprises on state-owned construction land in Shandong Province.