Discussion on the payment method and related legal problems of construction enterprises' arrears in project payment?

As an economic organization, it is not only the need of enterprise's own development, but also a necessary measure to prevent enterprise risks. Combining with my working practice as a legal consultant in a construction enterprise and drawing lessons from the experience of brother enterprises in clearing debts, I will talk about some skills in clearing debts.

First, the basic way to pay off debts

(A) the establishment of debt liability. Establish the guiding principle of "who handles, who is responsible, who forms and who urges", and implement the responsibility of debt clearance to the project manager. Specific implementation methods: ① The project manager promoted to the leadership of the branch company will still be responsible for clearing debts, and he will appoint the person in charge. (2) The creditor's rights formed by the original project manager transferred from the unit shall also be designated as the person responsible for paying off the debts. At the same time, from the branch to the project department, the responsibility book for clearing debts was signed layer by layer. (3) As the person responsible for paying off debts, the project manager can't fully honor the contract reward without recovering all the project funds.

The key points of the project manager's expediting vary from time to time: ① The expediting of the project under construction mainly requires the owner to pay the progress payment in time according to the contract; (2) For projects that have been shut down and temporarily unable to repay debts, credit investigation can be conducted to find out their assets and require the debtor to sign a repayment plan. The legal adviser of the construction unit may ask the industrial and commercial bureau for the financial statements of the other party in recent years.

(2) Improve information management. For a long time, the basic work of project payment arrears is weak and the information feedback is not timely. It took 10 months to establish an information management system for arrears of project funds for a group organization in Yunnan to introduce advanced technology. At present, the system realizes remote network interconnection and real-time access of remote users, which effectively improves the basic management level of arrears collection.

(c) Targeted response to government projects. The main reason why the government is in arrears with the project is that the new officials ignore the old accounts and would rather engage in performance projects than pay them back. The construction unit is unwilling to stop, and there is no way to ask for it, just like chicken ribs. It's a pity to abandon it. To this end, we should take targeted countermeasures.

1, government coordination: for government projects, the construction unit requests the local construction committee to help coordinate. The Construction Committee will hold a coordination meeting of all parties and send the minutes of the meeting to the Finance Department.

2. Online debt settlement: seize the favorable opportunity of the state to clear up the arrears of project funds, and make use of the advantages of the network to pay off the debt projects that have no market prospects, refuse to sign repayment plans, win the case but have not been implemented, and have been sued but not yet decided. You can declare the debt project in the "China Construction Engineering Information Network of the Ministry of Construction", which will provide information feedback. The Construction Department of Zhejiang Province also has a corresponding website to serve the construction unit in clearing debts.

3. Write a letter to pay off debts: The construction party can write to the construction authorities in other provinces and cities in the form of documents, requesting assistance in solving the problem that the local government and the construction unit owe us the project funds.

4. Supervision of debt settlement: take the initiative to issue an application for administrative supervision to the provincial and municipal debt settlement offices, and urge the construction unit to repay in time.

5. Sampling and clearing debts: According to the requirements of the Notice of the Ministry of Construction on Clearing the Arrears of Project Funds and Checking the Wages of Migrant Workers, the construction party will organize the implementation of basic work. Through the national random inspection, urge the construction unit to pay off the project funds.

(four) the use of various social relations to pay off the project. We can make use of various social relationships including classmates, comrades-in-arms, relatives and friends to win their understanding, support and help without embarrassing them. In addition, people's congresses and CPPCC members can be used to repay debts. In particular, NPC deputies' suggestions and CPPCC members' suggestions have certain effects. Construction enterprises themselves can also deal with the cleanup of arrears of project funds through internal coordination. For example, the local branch helps foreign institutions to handle cases locally, and the Hangzhou branch provides convenience for Beijing companies to handle cases in Hangzhou.

(five) the method of paying debts in kind (also known as debt restructuring). If the debtor has no cash to repay, but agrees to repay the debt in kind, a reasonable valuation will be made. Compensation should be economical and practical, and should be easy to realize. In the process of paying off debts, for those who pay debts in kind, they need to go through the corresponding registration procedures of ownership mortgage. A real estate project contracted by our company has poor sales for various reasons. Up to now, the real estate company has defaulted on the progress payment of RMB 6,543,800+million, which cannot be paid. A large number of houses are idle, and real estate companies may go bankrupt at any time. How to urge them is very difficult. According to the general terms of the contract between the two parties, if the owner defaults on the progress payment and fails to improve after being urged, he can stop work. But once the work is stopped, the situation of real estate companies will be even more difficult and will inevitably go bankrupt. This result is not expected by the company. In order to claim our rights and at the same time have room for manoeuvre, we take the following measures: ① The head office sends a letter to the corresponding branch, the main content of which is that the owner's default on the project payment is fruitless, and the branch has the obligation to supervise. Ask the branch to negotiate with the owner within a time limit, pay debts in kind and postpone the payment agreement. It is clearly stated in the agreement that RMB 6,543,800,000 yuan owed by the defendant should be paid off before XXX. If the owner agrees, the construction will continue. If the owner does not agree, the work will be stopped. At this time, the real estate company is very nervous when it stops working. ② The deferred payment agreement should be notarized, and the notarized repayment agreement can be directly applied for enforcement without litigation.

(6) prescription recycling method. The limitation of action refers to the legal time limit for the obligee to request the people's court to protect his legitimate rights and interests. If the statute of limitations is exceeded, although a lawsuit can be filed, the rights claimed are not protected by law. Overdue accounts receivable will become bad debts.

1, recording reminder: there is a project overdue 10 with a balance of 300,000 yuan. At the beginning of 2004, the legal adviser of the construction enterprise obtained the construction contract and project completion report signed by both parties, which laid the foundation for safeguarding rights. After obtaining the above-mentioned evidence, the contractor obtained the audio-visual evidence of the interruption of the limitation of action in this case by means of telephone recording and video recording in accordance with the provisions of the Supreme People's Court on Several Issues concerning Civil Evidence. The project manager dialed the owner's mobile phone from June 5438 to 10, 2004. The main contents of the call were: 1. The amount owed by the other party; Second, the contractor has been claiming creditor's rights since 1994; The third is when to return the arrears. The whole process of the call was recorded. Especially in the video evidence, the scene environment, the people present and the process of the project manager calling the owner's mobile phone are clearly visible.

Subsequently, the mobile company extracted the telephone "call list" used by the project manager. At this point, the chain of evidence that interrupted the limitation of action was completed, and all the evidence that the other party owed the project money was obtained, which provided a legal basis for restoring the limitation of action.

2. Bank transfer method. For example, the owner of a project owes hundreds of thousands of project funds. Over the years, the owners have delayed payment under various excuses and failed to make reconciliation records, resulting in the creditor's rights exceeding the limitation period. In order to obtain the evidence, the construction party can first send someone to the other unit to pay the debt, and the other party can pay as much as it can, but instead of taking cash, it requires a draft from the bank and tries its best to restore the limitation of action.

3. Method of negotiation and settlement. The re-signed contact sheet and statement are effective evidence of debt settlement.

4. Investigation methods of the Commission for Discipline Inspection. Find the debtor's unit and ask for the business contact form on the grounds of leaving the office audit of middle-level cadres in enterprises. Once the statement is issued, it is valid evidence.

5. Intentional claim method: If you owe 40,000 yuan, it has been more than 2 years. The construction party sent a letter to the owner by express delivery, deliberately demanding to pay off the arrears of 80,000 yuan. Sometimes the debtor feels wronged and replies with only 40,000 yuan. Such a reply is the evidence that the construction party won the case.

(7) procedural law according to law. We should make full use of the priority of compensation, the Interim Measures for the Fair Implementation of the Agreement on Arrears of Repayment for Construction Projects, and the Supreme Court's Interpretation on Applicable Legal Issues in the Trial of Construction Contract Disputes and other relevant laws to protect our legitimate creditor's rights. If the evidence is sufficient, the facts are clear, the dunning is fruitless and the repayment ability is available, legal proceedings will be resolutely carried out. In litigation practice, evidence collection is the foundation, litigation preservation is the premise, and friendly negotiation is the way.

(8) Through psychological methods. This method has a certain effect on private schools. Because private colleges and universities are private investments, there is no guarantee of funding sources, and they only rely on the tuition fees for enrolling new students every year to repay them. Therefore, the school does not want to pay back the money in time, and they are afraid of bringing negative influence to the school. The construction party can seize the weakness of the college that it is afraid of making the problem bigger and affecting the students. On the one hand, it has repeatedly called for repayment; On the other hand, the organizer collects arrears when freshmen enter school, and the other party is often forced by public pressure to pay off all the arrears.

(9) Tracking and recovery method. For the "nail" creditor's rights that are difficult to pay off, we can adopt the method of "sticking, following and biting" and swear not to give up until we reach our goal. You can run to the debtor every day, touching each other with your heart and annoying each other with entanglement. However, it is not appropriate to employ social "private detectives" to follow, let alone use illegal means such as house arrest and kidnapping.

A construction unit adopted the method of keeping an eye on it, and finally let the developer repay the project payment. In the housing construction project undertaken by a company, the developer boss evaded the debt, and the construction party failed to pay off the debt. The construction party arranged for three people to pay their debts by car. After nearly a month's follow-up, he finally blocked the developer's boss at midnight on the 28th of the twelfth lunar month, making him realize his loss and writing a repayment check of several million yuan overnight.

(10) internal bidding method. Some companies take out a number of difficult projects, invite tenders for employees to pay off debts, and give certain preferential policies to encourage employees to pay off debts. Through the formulation and promulgation of "Measures for Internal Bidding of Accounts Receivable", the bidding fee standard, bidding method and sample of entrusted collection contract are stipulated. For example, a company has successively carried out 3 15 creditor's rights projects, involving an amount of 1 070,000 yuan. The company1employee has successively undertaken 6 creditor's rights projects, and * * * recovered foreign debts of more than five years of 4.06 million yuan. Many units through summing up the annual "debt" work. The selection of advanced collectives and individuals has aroused the enthusiasm of the debt-clearing personnel and innovated various means of debt-clearing.

(1 1) Extended debt settlement method. The concrete measures are as follows: (1) undertake the continuous construction project; Cooperate with Party A to find the construction unit to implement the funds and recover the project arrears; Help the real estate agent sell the house and repay the arrears with the income from selling the house; Matching suppliers to buy commercial housing to offset the money owed us.

(12) creditor's rights transfer method (triangular erasure). Proper use of creditor's rights transfer can effectively solve the problem of triangular debt, reduce the cost of debt settlement and alleviate the contradictions between enterprises. For example, a company cooperates with a company in Hunan to build a road pavement project. After the project has passed the initial inspection and delivered, Party A still owes100,000 yuan. In order to recover the debt as soon as possible, a company transferred more than 9 million yuan of creditor's rights to its partners by means of creditor's rights transfer, and signed a creditor's rights transfer agreement to offset the equivalent debt owed by a company to a company in Hunan.

(13) Media exposure method. A group in Yunnan has repeatedly asked local TV stations in Yunnan to expose the owners of a building and other engineering projects who have been in arrears for a long time, so that the real estate developers who are maliciously in arrears can attract social attention and achieve the effect of paying off debts.

(14) contract prevention law. The difficulty of project settlement lies in the evaluation of price. The owner did not check the price in time for various purposes. At the same time, the effectiveness of the price evaluation needs to be determined by both parties. The construction party often checks the price, but the owner does not recognize it; The owner reviews the price, but the construction party does not approve it. It is laborious and time-consuming to review the price repeatedly in many aspects. For this reason, the following agreement can be made in the contract: 1, "The owner shall complete the price evaluation within × days after receiving the final statement, and it will be deemed effective if it is overdue" to prevent the price evaluation from being overdue. Sometimes the above statement is made directly in the contract, and the owner refuses to sign it for fear of damage to his rights and interests. Another alternative way is to make it clear in the contract that both parties apply the Building Law and the Measures for the Administration of Construction Contracts and Contract Valuation. Although the latter is the result of departmental regulations promulgated by the Ministry of Construction (it is clear that the owner is overdue), once both parties choose to apply it, it also has the effect of "overdue".

2. "If the construction party has any objection to the owner's timely audit results, both parties agree that either party will go to XX accounting firm for audit, and the audit price will be regarded as the final conclusion". In order to prevent repeated price review.

(15) Assess the situation. Construction enterprises should not give up their priority unconditionally in writing, because according to the relevant interpretation of the Supreme Court, this waiver is effective and irrevocable. During the construction period, it often happens that the real estate agent asks the construction party to give up the written priority for the loan, so the enterprise should assess the situation. When priority must be waived under special circumstances, corresponding settlement clauses can be added. That is, our company is willing to give up the priority of the XX project, and the amount shall not exceed XX ×××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××

(16) Conditional relief method. Owners often ask the construction party to waive interest and late fees, and even ask for a discount to repay the principal. At this time, in order to get back the project payment in time, the construction party had to give up part of its creditor's rights. However, while giving up, I am worried that the owners will still not perform according to the newly signed repayment agreement. At this time, conditional waiver can be adopted. The contract stipulates that if the owner can pay XX yuan before XX, the remaining XX yuan will be used as a waiver; Otherwise, the owner shall still perform according to the original creditor's rights and bear the liquidated damages.

The second is the outstanding problems encountered in the work of clearing debts.

(1) False bankruptcy and real debt evasion. Bankruptcy is the best way for debtors to avoid debts. Some enterprises use bankruptcy procedures to get rid of the debt burden and "go into battle lightly", which seriously damages the interests of construction units and causes serious loss of enterprise assets. For enterprises, the problems of false bankruptcy and true evasion of debts can only rely on the national legislature to formulate corresponding laws as soon as possible to curb the occurrence of false bankruptcy and true evasion of debts.

(2) Insufficient execution. At present, the problem of difficult implementation is a concern of the whole society. In addition to the debtor's deliberate evasion of debts and transfer of property, another reason is that the traditional means of execution are gradually restricted by law. For example, according to the current law, houses necessary for personal life cannot be used as the object of execution.

Corresponding countermeasures: on the one hand, we should strengthen the enforcement of the court and explore new means of enforcement, on the other hand, we should strengthen the ability of enterprises to search for property clues. New implementation ideas: ① the construction party suggested that the court seal up the sales department of the real estate company in arrears; (2) The court issued a judicial proposal to the local People's Bank, suggesting that all banks within the jurisdiction of the People's Bank of China refuse loans on the grounds that the owed companies lack integrity; (3) The court sent a judicial proposal to the local industrial and commercial bureau, suggesting that the companies in arrears should be included in the enterprises with lack of integrity and recorded; (4) The court issued an order to restrict high consumption, restricting debtors from making high consumption, such as buying high-end cars and flying on business trips.

(3) agency by estoppel. When the interests of individual migrant workers often occur in construction management and cannot be maintained due to the contractor's reasons, they will take the contractor's representative as the contractor and claim the interests from the general contractor on the grounds of "apparent agency". In fact, the unit has allocated the contractor in full, but the court often decides that the enterprise is jointly and severally liable.

(d) Each company has its own brilliant ideas on how to prevent the project manager from signing the contract without permission or exceeding his authority.

1, the practice of a bureau in Shanghai is to centrally manage the decentralization of enterprises and standardize the responsibility system for operation. Its foreign economic activities are entrusted with three kinds of authorization: one is to authorize government managers, the other is to authorize the project department, and the third is to authorize one thing at a time. Among them, the authorization to the project manager is to verify the amount and authority of signing the contract according to the subcontracting, leasing, procurement, processing and repair business involved in the project and issue a power of attorney. When the project manager obtains the power of attorney, he shall issue a letter of commitment to the legal representative to confirm the entrusted matters and promise his responsibilities in the process of carrying out economic activities abroad. These authorizations are regarded as the premise for enterprises to carry out foreign economic activities and sign contracts, and are managed by contract management departments.

2. The practice of an electric power company in Sichuan is slightly different. The company believes that the project department is only a temporary department established by an enterprise as a legal person, and there are legal obstacles to signing contracts with foreign countries. The industrial and commercial department can even suspect that "the project department is suspected of illegal unlicensed operation". For this reason, the company proposed that the project department sign a contract, and it is forbidden to affix the administrative seal of the department (including the administrative seal of the project department). Contract authorization can be managed in two ways. 1. The special seal for the contract is used for unified numbering and shall be applied by the functional department of the contract. The second is the single written authorization entrusted by the legal representative to the project manager. For example, according to the needs of the project department, the project manager can be authorized to sign a contract with a certain amount or related types.

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