The relationship of the construction permit to the actual start date
The relationship between construction permits and the date of commencement of construction has long been a tit-for-tat opinion in judicial practice. Some people believe that the date of commencement of construction should be determined according to the time of commencement of construction recorded in the construction permit, because the construction permit is a prerequisite for allowing the start of construction, and only with the permission of the administrative organ can the contractor's construction behavior have legitimacy, otherwise the management of the administrative organ will be frustrated. The reason for this is that article 7 of the Construction Law stipulates: "Before the construction project starts, the construction unit shall, in accordance with the relevant provisions of the State, apply to the competent construction administrative department of the people's government at or above the county level where the project is located to obtain a construction permit; however, except for small projects below the quota determined by the competent administrative department for construction under the State Council." Article 9 stipulates: "The construction unit shall start construction within three months from the date of receiving the construction permit". The mainstream view in current judicial practice is that the construction permit for a construction project is a certificate issued by the competent construction department to the construction unit to allow it to construct, which only indicates that the construction project meets the conditions for starting construction, the construction permit itself is not a certificate that determines the date of commencement of construction, and there is no direct link between whether the construction permit is obtained and whether the actual start of construction is not directly related, therefore, such as the agreement reached between the two parties or the notice of commencement of construction, the commencement report issued by the contractor, etc. is inconsistent with the date of commencement of construction on the construction permit. Courts generally do not rely on construction permits for construction works. Many courts' guiding opinions on construction contract disputes do not directly stipulate whether the construction permit can prove the date of commencement of construction, and some courts' guidance opinions, even if there are relevant provisions, also stipulate that the parties' agreement is better than the construction permit. For example, the Guiding Opinions of the Shenzhen Intermediate People's Court on Several Issues Concerning Construction Project Contracts (2006) stipulates that if the contractor has actually carried out the construction work before receiving the Construction Permit, and the two parties agree to calculate the starting time of the actual construction period, the agreement shall be followed. Of course, if the Construction Contract for Construction Works (Model Text) (GF-2013-0201) is used to sign a construction project construction contract, according to the contract, the supervision unit should have obtained a construction permit before issuing the notice of commencement of construction.
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【Risk Lawyer】Mr. Xu Haifeng, who has been engaged in legal research and legal practice for more than 20 years, has published more than 20 legal works and represented many major difficult and complicated cases, especially civil and commercial cases of the Supreme People's Court and the Provincial High Court, which has aroused many social repercussions.
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