Can the defective visa form not signed by the employer be used as the basis for settling the project payment?

The engineering visa plays an important role in the whole life cycle of the construction of a construction project, and it is usually a written agreement reached between the parties to the contract on the changes, adjustments and other matters that occur during the construction process. These changes may include design changes, price adjustments, extension or reduction of construction periods, changes in quality standards, etc. The project visa plays a key role in ensuring the smooth progress of the project, the reasonable allocation of risks and costs, and the final settlement of the project.

When there are defects in the construction visa that have not been signed by the employer, whether it can be used as the basis for project settlement mainly depends on the nature and severity of the defects, as well as the agreement between the parties to the contract and relevant legal provisions. Based on years of practical experience in construction engineering law and judicial adjudication cases, the author makes a simple and clear combing of this issue, which is directly related to the validity of the visa and its role in the settlement of project payment:

1. Formal requirements of the visa: The project visa does not necessarily have a specific name or form, the key is whether its content records the construction period, quality, price changes and other substantive content.

2. The main requirements of the visa: The subject of the visa must be the person who has the right to apply for the visa, such as the project manager or the supervising engineer. If the visa is signed by a person who does not have the authority or exceeds the authority, there may be a problem of validity, but the specific situation needs to be judged in combination with the contract agreement and the actual performance of the contract.

3. Legal validity of the visa: Even if the visa has defects in the form of signature, the visa may still be deemed valid if it can be proved through other evidence that the content of the visa reflects the true intentions of both parties.

4. Classification of visas: Engineering visas can be divided into engineering change visas and engineering claim visas, and different types of visas will involve different legal issues and processing methods.

5. Visa signature requirements: Whether the visa document needs to be stamped by the company and the authority of the signatory are important factors that affect the validity of the visa. The signature of the legal representative or authorized person usually has a high legal effect.

6. Unsigned construction visa: Even if the construction visa is not signed, as long as the contractor can prove that the employer agrees to the construction or the existence of the claim, the employer shall, in principle, still pay the amount corresponding to the work actually completed by the contractor.

7. Visa risks and avoidance measures: The parties should properly keep the project visa information, strengthen the authority management of the visa personnel, and clarify the list and authority of the authorized personnel of the project visa.

8. Validity of the supervisor visa: The supervisor obtains the corresponding agency right based on the entrustment, and the project visa signed by the supervisor may have the effect of having the right to act as an agent for the employer, and the specific effect depends on a variety of factors, including whether the contractor knows or should know that the supervisor exceeds his authority.

When dealing with the defects of an engineering visa, the court will usually consider factors such as the content of the visa, the authority of the signatory, the actual conduct of the parties, and whether it constitutes apparent agency. Therefore, when there are defects in the project visa, whether it can be used as the basis for project settlement needs to be comprehensively judged in combination with the specific situation.

There are certain disputes and restrictions on whether the visa form not signed by the employer can be used as the basis for settling the project payment. The following is a combination of several typical cases for further detailed discussion.

1. It is argued that if the employer does not sign the visa form, but fails to provide a reasonable explanation or evidence to prove that the contractor did not carry out the corresponding construction, then the employer cannot refuse to settle the settlement solely on the basis of the specific clauses in the contract. This suggests that, under certain circumstances, the visa slip may be accepted as a basis for settlement, even if the employer does not sign it. For example, the Supreme People's Court held in the case (2022) Zui Gao Fa Min Zhong No. 192 that although there is a special clause in the construction contract stipulating that "a visa form that lacks the signature of any party is invalid and should not be settled", the signature of the supervision unit, as a third party hired by the employer, has certain legal effect. Because the responsibility of the supervision unit is to supervise and confirm the construction activities of the contractor, the quantity of work confirmed by the supervision unit can be presumed to be the actual amount of work. If the employer does not sign the visa form, but fails to provide a reasonable explanation or evidence to prove that the contractor did not carry out the corresponding work, then the employer cannot refuse to settle the settlement solely on the basis of the specific clauses in the contract.

2. There are also cases showing that although the act of the signing entity on the project visa form is incomplete, but the employer cannot provide evidence to prove that the supplementary project part shown on the visa form does not exist, the authenticity and validity of the visa can be determined. This means that in the practice of engineering visas, the authenticity and validity of the visa slip do not depend entirely on the completeness of the signature. For example, the Supreme People's Court held in the case (2020) Zui Gao Fa Min Zai No. 336 that on the issue of whether the three expenses involved in the visa form that did not perform the sealing procedure in the appraisal opinion should be included in the project price, the two parties agreed in the Construction Contract that the two parties agreed in the Construction Contract that the increase or decrease of the project price, including the change of design drawings, price change, increase or decrease in project quantity, construction period, etc., The visa for the extension or advance of the construction period shall be effective only if the engineer visa is dispatched by the employer, except for the engineer visa dispatched by the employer. For the "uncertain part" of the appraisal opinion In the case that Jiaxin Company did not submit sufficient evidence to prove that this part of the project was constructed by other constructors or that the above-mentioned visa was a false visa, although Jiaxin Company did not affix its seal, it could not deny the fact that this part of the construction project was completed by the metallurgical company, so from the perspective of fairness, the part of the project and the corresponding project price of 1,383,694.68 yuan should be determined.

This case shows that although there is some flexibility and conditions for engineering visas that allow unsigned or stamped visa slips to be used as a basis for settlement, this usually requires additional evidence or reasonable explanations to support it. Therefore, whether the unsigned or stamped visa form can be used as the basis for settling the construction payment depends on the circumstances of the specific case and the judgment of the court. In practice, in order to avoid disputes, it is advisable to ensure as far as possible that all relevant visa forms are signed or stamped by the employer.

3. There are also cases that if there are defects in the formation process of the project visa form, but these defects do not affect the core content of the visa form, and the formation process, content and execution of the visa form are in accordance with the contract and the settlement habits of both parties, then the visa form can be used as the basis for the project settlement. On the other hand, if the visa slip seriously deviates from the contract or the settlement habits of both parties during the formation process, or the content of the visa slip is obviously inconsistent with the actual construction situation, then the visa slip may not be recognized as the basis for settlement. For example, the Supreme People's Court held in the case (2021) Zui Gao Fa Min Shen No. 5357 that the application of the visa data involved in the original trial was correct. These visas do not have the stamp of Litong Company, but they have been confirmed by the supervision company and signed by the supervision engineer, and there are materials from the relevant administrative department to prove the reasons for the suspension of work and other expenses. In addition, the other engineering visas involved in the case were not confirmed by the signature and seal of Litong Company, but they were still found to be valid. This shows that the process of forming the visa is in accordance with the contract and the settlement habits of both parties. In this case, the trial court based on a comprehensive consideration of the terms of the contract, the settlement habits of the parties, and the actual situation on the spot. If Litong Company did not provide sufficient rebuttal evidence to deny the contents recorded on the visa form, it was reasonable for the trial court to adopt the visa data as the basis for settlement.

4. If there is evidence to prove that the project visa issued after the fact is the true expression of the intention of both parties and is in line with the actual situation of the project, it shall be used as the basis for settlement. For example, in the case (2017) Zui Gao Fa Min Shen No. 1730, the Supreme People's Court held that China Coal No. 3 Construction Company and China Coal No. 29 questioned the legality of the construction contract and project visa form on which the appraisal report was based, arguing that these documents were illegally re-signed by Chengxin Mining Company in collusion with unauthorized personnel of China Coal No. 29. However, when hearing the case, the court considered the following key factors: the seal of the project department: the "Working Face Grouting Treatment Contract" and the "Engineering Visa Form" There are the seals of the project department involved in the 29th case of China Coal, which indicates that the documents have been officially approved by the project department; signatures of key personnel: Wang Jingyue and Zhu Yougang, who were the managers and deputy managers of the project department involved in the 29th case of China Coal, signed the relevant documents, which enhanced the credibility of the documents; witness testimony: Wang Jingyue and Zhu Yougang testified in court in the second instance, confirming that their signatures were to prove that the honest mining company had constructed the project involved in the case, and the act of re-signing was approved by the project department of China Coal 29; and the consistency of the quantity of the project: Zhu Yougang proved itThe quantity of work on the "Project Visa Form" is consistent with the quantity of work signed and confirmed by the technician, which further confirms the authenticity of the contents of the visa form; true expression of intent: the court held that although the contract and the visa form were signed after the fact, there is evidence that this is the expression of the true intention of both parties; in line with the actual situation: the witness testimony and the confirmation of the seal of the project department show that the re-signed document reflects the actual situation of the project. Based on the above factors, the court found that although the "Working Face Grouting Treatment Contract" and the "Project Visa Form" were signed after the fact, they were still valid and could be used as the basis for appraisal and settlement.

5. If there is evidence that the construction visa is forged, and the contractor fails to provide other evidence to prove the authenticity of the visa contents, the court will refuse the visa as a valid settlement basis on the grounds that it cannot confirm the authenticity of the visa. For example, in the case (2019) Zui Gao Fa Min Zhong No. 1082, the Supreme People's Court held that although 11 construction visas had the signature of the employer and 10 were signed by the chief engineer Chen, Chen testified that his signature was made at the repeated request of Han and Zhao, the former principals of the employer, and pointed out that 4 high-value visas were false, and the remaining 6 visas were exaggerated. The employer also submitted the "Explanation of the Situation" of the Public Security Bureau, showing that Han and Zhao were placed on file for investigation on suspicion of preparing false visa forms and embezzling project funds. The total amount of lost work expenses and machinery leasing fees involved in the visa is tens of millions of yuan, but there is a lack of engineering information to support its authenticity. The number of personnel and machines in the visa, the number of days of work stoppage, etc., are inconsistent with the facts, and violate the principle of seeking truth from facts. Accordingly, the court held that the visa documents submitted by the contractor did not meet the standard of proof of a "high degree of probability". In the second instance, although the contractor asserted that some of the visa contents were true, due to the lack of sufficient evidence, its claim that the visa fee of RMB 139 million should be included in the project price was not supported.

These cases show that although there is some flexibility in engineering visas, whether or not an unsigned or stamped visa slip can be used as a basis for settlement usually requires additional evidence or reasonable explanations to support. Therefore, whether the unsigned or stamped visa form can be used as the basis for settling the construction payment depends on the circumstances of the specific case and the judgment of the court. In practice, in order to avoid disputes, it is advisable to ensure as far as possible that all relevant visa forms are signed or stamped by the employer.