The following are some comments and suggestions from Li Wei, secretary general of the Chongqing Concrete Association, on the verdict of the Changsha concrete incident, hoping that concrete friends will gain something.
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Regarding the discussion of the Tuoyu case in Changsha, Hunan Province, I personally feel that we should analyze and understand it from the following aspects.
First, we must first analyze why this verdict occurred and its impact.
The results of this decision are the result of a variety of factors, at the very least:
1. The outside world's lack of awareness of concrete enterprises and concrete products, that is, they do not understand the characteristics of concrete enterprises and concrete products, and it is inevitable to misunderstand in the case of insufficient cognition.
2, concrete enterprises themselves do not pay attention to maintain the image of the industry. Many enterprises do not comply with industry conventions, and there is more chaos in the industry, which not only self-destructs the image, but also causes many opportunities for construction enterprises.
3, due to the serious overcapacity of the industry, concrete products present a strong buyer's market state, concrete enterprises are in a clear inferior position, coupled with the construction enterprises in many "national" word, "medium" word unit abuse of their market monopoly position, not only in the contract to impose many unequal terms, but also the laws, regulations should be clearly enforced by them to perform the responsibility imposed on our enterprise, the relevant management departments also turn a blind eye, and become the norm, which is the key to the problem.
4. The problem of the Tuoyu case in Changsha, Hunan Province, has a big problem, the social impact is great, the government has pressure, it must calm the situation, it must explain to the society, and someone must always take responsibility. Who will bear the burden? The difficulty of a strong position can only be borne by a weak position. The reason is very simple, because society does not understand you, because your image is not very good, because your weak position can not "turn the waves", so it is you! Just as the so-called confused officials judge the confused case, there is also a reason for confusion.
What is the impact of the verdict in the Hunan Changsha Tuoyu case? Everyone says that it has opened a precedent for unfair judgments on the concrete industry, in fact, this is only the appearance, and its essential impact is: the misunderstanding of our industry by society has been "corrected", the bad image of our industry has been "clarified", and the weak position of our industry has been more "fixed", which is the major and far-reaching impact on the healthy development of the industry and the protection of the legitimate rights and interests of the industry.
Second, trace back to the source, in order to correct the audiovisual.
From the basis of sorting out the nature of ready-mixed concrete enterprises, the characteristics of ready-mixed concrete products, the characteristics of concrete components, and the relationship between ready-mixed concrete enterprises and construction enterprises, ready-mixed concrete and concrete components, we will truthfully expound to relevant departments and the society, objectively reflect the wrong understanding or misunderstanding of some industries and personnel in the society about the characteristics of ready-mixed concrete enterprises and products, maintain the healthy development of the industry, and maintain the fairness and justice of society.
1. What is the nature of ready-mixed concrete enterprises? The certificate of "Professional Contracting Qualification for Ready-mixed Concrete" issued by local housing and construction committees to enterprises indicates that it is a part of building construction.
2. An essential feature of ready-mixed concrete products is that it is a non-finished product that does not have independent use value, and the embodiment of its use value is concrete components. Ready-mixed concrete is the basis for forming concrete components, but ready-mixed concrete is not equivalent to concrete components, and the two are two completely different concepts. Because ready-mixed concrete is to become a concrete component, there must also be two links of pouring and maintenance, which determines the factors affecting the quality of the product quality of the concrete components In addition to the quality of the ready-mixed concrete itself, there is also the correctness (specification) of the pouring and maintenance process. Good rice can make good rice, but good rice does not necessarily make good rice.
3. An essential feature of concrete components is that concrete components are products jointly completed by ready-mixed concrete production enterprises and concrete construction enterprises, and both enterprises have actions and responsibilities for the quality of products. In order to standardize and divide the behavior and responsibilities of ready-mixed concrete production enterprises and concrete construction enterprises, the national construction management regulations and the relevant standards for ready-mixed concrete clearly stipulate that the construction unit should deliver the ready-mixed concrete to the site for on-site delivery and acceptance. This provision is both a provision for procedure and conduct, as well as a provision for the division of responsibilities. Generally speaking, the on-site delivery acceptance is the demarcation point of the division of responsibilities between the two parties, and as a boundary, the quality responsibility of the ready-mixed concrete at the front end belongs to the concrete production enterprise, and the quality responsibility for the process of forming concrete components at the back end should belong to the concrete construction enterprise. The on-site acceptance of ready-mixed concrete is a statutory link and a statutory responsibility of the construction enterprise.
3. Legal relationship and legal basis. According to the above analysis of the nature and product characteristics of ready-mixed concrete enterprises, and the relationship between concrete production enterprises and construction enterprises, ready-mixed concrete products and concrete component products:
1. Ready-mixed concrete enterprises are a part of building construction, and their corresponding behaviors and results should belong to the adjustment scope of the Construction Law. At the same time, the third paragraph of Article 2 of the Product Quality Law also makes it clear that "the provisions of this Law shall not be applied to construction projects", that is, the Product Quality Law is not the legal basis for determining the quality of ready-mixed concrete.
2, ready-mixed concrete for concrete component products is a non-finished product, it is different from doors and windows, wall (floor) bricks of non-finished building materials, with the adjustment of the finished product of the "Product Quality Law" to determine a non-finished product, is obviously inappropriate.
3. Determining the quality of concrete component products is the result of the joint action of a variety of conditions, that is, multiple causes and one effect. In the case of multiple causes and one effect, if other factors are not completely excluded, it is not possible to categorically determine that one of the possible factors is the only factor that causes the result, otherwise, it is contrary to the relevant legal presumption rules.
4. In the case that the construction enterprise has not fulfilled its statutory responsibilities (did not do on-site acceptance), it is not in line with the relevant laws (rules) and the legal principles of justice and fairness to blame all the responsibilities for all adverse consequences on the concrete enterprise.
IV. Recommendations:
1. Ask the Secretariat of the National Association to organize the consensus formed during the discussion of this meeting into materials (or meeting minutes), in order to ensure the objectivity and legal rationality of the data, you can ask the personnel of Kuangzhen Law Firm to check the legal provisions and relevant legal terms cited in the materials.
2. The data is divided into two parts, one part of which is what is the enlightenment of this case for our concrete enterprises (industries)? What issues should we be aware of? In order to standardize ourselves and "strike the iron itself hard", we must also protect ourselves; the other part is to reflect the characteristics of the industry and the characteristics of the product, reflect the industry's views and views on this judgment, reflect the legal shortcomings of this judgment and the impact of the judgment on the industry, let the outside world understand us, reduce the misunderstanding of the outside world, and avoid the recurrence of similar incidents. This is a call on behalf of the industry.
3. Reflect to the relevant departments in the name of the National Association. In terms of methods, we may consider submitting materials to the internal departments and committees of the People's Congress; or see if there are people's congress deputies or CPPCC members in the ranks of experts in our industry, and ask them to reflect through the channels of the people's congress and the CPPCC, or reflect and appeal in the form of the proposal of the "two sessions".
Personal opinion, for consultation.
Chongqing Concrete Association Li Wei
April 9, 2021
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