谈建设工程施工索赔和反索赔的探1.doc

谈建设工程施工索赔和反索赔旳探讨
摘要
施工索赔和反索赔是业主和承包商在工程项目施工过程中正常旳业务往来,它旳健康开展,对于培养和发展建设市场,增进建筑业旳发展,起着非常重要旳作用。
核心词：施工索赔、反索赔、风险
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Talk about construction project claim and counter claim
Abstract
Construction claim and counter claim is the normal business between the owner and the contractor,during the project construction process , it's health plays a very important role
in cultivating and developing construction market and promoting the development of the construction industry.
Keywords: construction claim and counter claim, risk
Directory
The abstract · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Ⅰ Abstract · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Ⅱ
One The main characteristics of a claim · · · · · · · · · · · · · · · · · · · · · · · · ·
1.1 Risk claims · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·
1.2 Construction conditions change claims · · · · · · · · · · · · · · · · · · · · · ·
1.3 Quantities change too big claims · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·
1.4 Time limit extension and delay claim · · · · · · · · · · · · · · · · · · · · · ·
1. 5 To speed up the construction claim · · · · · · · · · · · · · · · · · · · · · · · · · · ·
1. 6 Other reasons claims · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·
Two The main characteristics of counter claim · · · · · · · · · · · · · · · · · · · · · · · · ·
2.1 Construction period delay counter claim 1 · · · · · · · · · · · · · · · · · · · · ·
2.2 Construction defects counter claim · · · · · · · · · · · · · · · · · · · · · · · · · · · ·
2.3 A claim for payment of designated subcontractor · · · · · · · · · · · · · · · · · · ·
Three Claims and counter claim’s relations · · · · · · · · · · · · · · · · · · · · · ·
Four Conclusions · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ·
Five References
One The main characteristics of a claim

1.1 Risk Claims
Generally ,it includes the contract risk, political risk, economic risk, such as inflation, changes in natural conditions, complicated construction site conditions, the change of various laws and regulations, foreign currency exchange project risk, and so on. Because in the current construction market, the owner is always in a dominant position,they may shift the risk that should be borne by the owner to the contractor by using improper or illegal means when tendering and the contract is signed,which causes contractor’s risking rate increases, so the construction claims is often put forward by the contractor, and their differences are often large. In recent years, due to the increase in construction engineering construction team in China, the vast majority of construction enterprise exists serious task -insufficient phenomenon, which has caused an increasingly competitive construction market, the construction unit adopted a variety of unfair means in the bidding and contract signing, so on the surface , the rights and obligations of the contractor and the owner are equal, but in all kinds of terms and attached conditions, there is essentially no equality.

1. 2 Construction conditions change claims
In the construction process, engineering inevitably appears new changes, especially the design change. Contractor's quotation is calculated on the basis of the original tender documents and drawings.According to the terms of the contract,any change of the number and nature of the work in the construction drawings and the change of any portion of the project construction plan are changes. If such changes affect the cost of the contractor, the contractor can ask to estimate again,and puts forward to extend the time limit for a project requirements. In the actual construction, such claims will often cause controversy,and it is mainly because the difference between the owner and the contractor for respective interests Angle.

1. 3 Big change in construction quantities claims
Of actual construction, the complete quantities differ with quantities from design, 4th edition FIDIC52. 3 terms make a clear regulation, when price increases or decreases over 15%, it is allowed to make an adjustment to the effective contract price.Main claims has the following several aspects: first, the damage caused by contractor's construction equipment imbalance, due to the contractor at the time of bidding, and quantities as stated in the contract documents according to the tender documents and construction requirements, formulate the construction plan, determine the number of construction equipment shall be equipped with, type, model and organization order, transport comes into play, and the large increase in quantity, certainly will ask for an increase in new construction machinery, or increase the number of the original mechanical, cause the contractor unplanned investment, expand the planned cost of the project. If the slashing of quantities, the cause of original equipment slowdown or unused, lead to losses of the contractor, at the same time, the change of the quantity, also make the contractor construction material quantity change has been prepared, caused the claim. Second, it will cause the change of the schedule of quantities, which can cause period extended or reduced.

1. 4 time limit extension and claim for the delay
Period extension and claim for the delay, usually includes two aspects: one is the contractor required extend the time limit for a project, 2 it is the contractor request payment due to contractor's reason lead to project delays caused by the loss. Engineering construction, due to factors such as weather, hydrological, geological and engineering factors more delay. When the contractor the cost of the extra spending without compensation, certainly will cause the claim.

1. 5 to speed up the construction of the claim
Disrupted when the project schedule, influence the realization of the overall objectives, lead to project cannot be completed on time and affected the economic benefits of the owner, the owner through the analysis of project delays, will bring us great economic losses or political influence, or as part of project delay caused a series of engineering delay, the owner can use extra measures to release speed up the construction instructions, request the contractor to invest more resources to complete the project, ensure the realization of overall objectives, and this will inevitably lead to the contractor's project cost increases, caused by contractor's claim.

1. 6 Other causes of claim
Owner defaults to provide construction site,and doesn’t pay payment on due time, as a result,it causes the contractor construction team failed to play, or contractor's cash flow difficulties, which affect the construction schedule, so it will cause the claim.

Two The main characteristic of the counter claim
2. 1 counter claim time limit for a project delay
In engineering project implementation process, due to the contractor's reason, lead to after the completion date to pull, affect the use of the owner, the owner shall have the right to the contractor to claim for compensation, generally in the contract documents, the claim for compensation of a certain amount of calculation for each delay day, there are rules and ceiling.

2. The 2 counter claim construction defects
When the construction quality of contractor does not conform to the specification requirements, or use of equipment, materials do not conform to the provisions of the contract, or in the guarantee period should be under unfinished before repair project, the owner shall have the right to the contractor shall be investigated for responsibility. If the contractor has not completed within the prescribed time limit, mending, owner shall have the right to employ others to finish mending, and lodge a claim against the contractor.

2. 3 payment to designated subcontractor's claim
If the contractor has failed to provide the reasonable payment to the designated subcontractor has proved that the owner to the contractor for all designated subcontractor payments paid to the subcontractor. In addition to the above several kinds of counter claim, due to the fault of the contractor, to the owner party and third party personnel caused personal injury or economic losses, the owner of the claim.

Three claims and counter claims
Claims and counter claim is a claim according to the different object and definition, its fundamental purpose is a direction of the other party in contract is the other party liability caused by events, to the other party demands compensation, claim and counter claim must be based on contract, require the events of the real, the proof be definite, charge calculation is reasonable and accurate, and responsibility analysis to clear, this to the parties to the contract to handle easy to accept, and reduce disputes and disputes.

Four Conclusions
Construction claims and counter claim is the owner and the contractor of the project construction process of normal business between us, it's health, to cultivate and develop construction market, promote the development of the construction industry plays a very important role: one is to improve the contract both sides to strengthen internal management, to perform the contract strictly, to maintain the normal market order. 2 it is conducive to reasonably determine the project cost, make more solid is the fact that the project cost. 3 it is to force the parties to a contract faster familiar with international practice, familiar with claims and claims processing methods and skills, adapt to the situation after China's accession to the WTO of the construction market, improve the level of competition in the construction enterprises.

Five References
[1] SheLiZhong compiled. Contract for construction project management [M]. South China university of technology press,
[2] SheLiZhong; cultivating students' engineering consciousness and ability of research and claim schedule of Higher building Education, Journal of Architectural Education in the I nstitutions who Learning, 01,
FIDIC contract clause
[3] (international federation of consulting engineers, 1, 1999)
[4] ShiQing theory of construction claim and counterclaim management ECONOMIST CHINA ECONOMIST article 第04 period project managers alliance in
[5] Zhang Wei; Li Yingjie claims in terms of the contract analysis example of economic CONSTRUCTION, CONSTRUCTION pa., 1997, 05
King
[6] Zheng Jibing Zhao Xiuwei, mina project of the construction of the new method: Partnering model (partnership) < < construction management modernization > > 01,
[7] Zhang Weidong Wang Xiangqun Song Aidong engineering project risk management present situation and countermeasures of < < China engineering consulting > > 12,
[8] Li Yonggui theory principle the claim negotiation skills < < the west exploration engineering > > , 17 (11)
[9] to feel secure, Qian Kun embellish: the construction project contract and claim management, southeast university press, 1993