Research On Quality Margin Return

Project quality deposit refers to the fund agreed by the employer and the contractor in the construction contract to ensure the contractor to repair the defects of the construction project within the period of return of project quality deposit.The connotation of project quality margin return is two requirements: one is the expiration of the term,the other is qualified.Article 2 of the Measures for the Management of Construction Project Quality Earnest money stipulates that the maximum period for the return of construction project quality earnest money shall not exceed 2 years,and Article 17 of the Judicial Interpretation of Construction Project Construction Contract(I)stipulates that the parties may agree on the length of the period,not limited to 2years.There are conflicts between the upper law and the lower law,and there are contradictory judgments in judicial practice: some courts think that the time limit for the return of project quality deposit is deducted,or violates the principle of fairness,or violates the provisions of the "Measures for the Management of Construction Project Quality Deposit" and is invalid;However,some courts hold that the period beyond 2 years is in line with the true intentions of both parties and is effective according to the principle of good faith.Therefore,as for the term,the author is really confused.Is the term of project quality deposit return limited to 2 years? In terms of quality qualification requirements,when engineering quality defects occur,direct deduction of engineering quality deposit and the right of repair claim are preferred,which is more reasonable? And so on.The author will be studied and discussed in the element theory,the author tried to explain from the legal status of applicable order,law,such as intention explanation Angle is discussed,the engineering quality margin return period,from the start counting from the date of acceptance of completion,if the reason should be the developer fails to timely acceptance and unauthorized use of the same can happen effect of acceptance,The project quality deposit shall still be returned upon expiration of the term,and the term of return shall not be limited to 2years.As far as quality requirements are concerned,China’s remedial performance mode has no sequential requirement and adopts reasonable selection mode.The author thinks that the remedial performance mode with defect repair claim first is more reasonable.Then,from the perspective of effect theory,the author tries to find out whether the project quality deposit can be paid first,the scope and proportion of the return,and the relationship between the project quality deposit and liquidated damages.To clarify the nature of the project quality bond and determine whether it can be compensated in a priority way,the author considers that the nature of the project quality bond has changed,which is different from ordinary project money.Depending on the situation,it is either the transfer of trust ownership or money pledge.Although the form of the project quality deposit is similar to the deposit,the deposit can be used as the price according to the law,but in essence,the nature of the project quality deposit is like a transformation,different from ordinary project funds,unless the parties have other provisions can be priority compensation.When the defect loss scope of the project is greater than the project quality deposit,its return scope has its own special rules,and the insufficient part can be claimed for insufficient compensation,which is different from the "liquidated damages" disposal rule,which takes "offset" as the principle and "judicial discretion to increase or decrease" as the exception.Project quality deposit and liquidated damages are in conflict in nature,purpose and function,quality guarantee deposit and liquidated damages can only be applied,not combined.