多事件干扰下工期延误索赔原则研究

STUDY ON THE PRINCIPLE OF DELAY CLAIMS WITH MULTI-EVENT INTERFERENCE

基于法律的公平与正义精神,本文研究多事件交叉干扰下工期延误索赔的责任归属判断和责任比例测量原则,试图在遵从法律所规定的基本原则前提下,为项目各方协商解决争议,为法官行使自由裁量权提出定性定量的理论见解。对照以FIDIC为代表的国际惯例和中国的GF-1999-0201施工合同示范文本规定,指出在多事件交叉干扰条件下,传统的施工合同索赔责任划分与计算的三种观点存在如下缺陷:初始事件原则违反了公平原则;不利于承包商原则既不符合逻辑,又违背公平原则;责任分摊原则没有解决定量问题。同时这三种观点在同一案例处理中彼此独立,非此即彼。文章提出并从法律、项目合同当事人的根本利益和实践角度,利用信息不对称理论论证了多事件交叉干扰条件下工期延误索赔的“工期索赔雇主责任优先,费用索赔承包商责任优先”命题,简单表述为“工期从宽——费用从严”原则。这一原则的含义是,在多事件交叉时段内,只要存在雇主责任或雇主风险,即给与承包商工期补偿;与此相反,只要存在承包商责任或风险,则承包商的费用索赔均不成立,同时,存在承包商责任时,雇主的索赔成立。文章对几种不同观点下的计算结果做了对比分析。

Under the principle of impartiality and justice of law, the paper views on the calculating principle of Delay Claims with Multi - Event Interference of construction contract, trying to provide a qualitative and quantitative opinion for dispute resolution of project parties and for the self-determination of judiciary according to the basic principles advocated by laws. Based on the international common traditions represented by FTDIC and the sampled building contract GF - 1999 - 0201 in China, the paper proposes that the three common points about building contract responsibility sharing for claim and its computing have some defects in Multi-Event Interference, which are that the principle of Responsibility on Initial Event violates the justice law, that the Adverse Responsibility on Contractor is neither logical nor fair, and that Responsibility Sharing has no quantitative resolution . Meanwhile the three points are independent and incompatible in one case. Considering the law practice and project parties' prime benefits, the paper explicates a new idea about delay claim, supported by the Theory of Information Dissymmetry, which is 'Giving the first duty to clients on the claims for extension time, and the first duty to contractors on the financial claims' in Multi-Event Interference. The idea can also be simplified as a principle of 'loose duration, and tightened cost', which means in Multi-Event Interference, compensating for contractors when client's responsibility or risks emerge; on the contrary, contractor's cost claim is not applicable when its responsibility or risks exist, meanwhile if contractor's responsibility emerges, client's claim is applicable. The paper also compares the computing results under different points.