外文翻译工程索赔相关问题理论.doc

附录A 英文原文The engineering claims related theory The summaryIn this paper, the engineering claims related theory must research and engineering claims to the owner and the contractor classification and meaning between the claim to understand. 1.1 The engineering claims and the meaning and the claim classification The claim was in the project contract performance of the contract, one party because the other party fails to fulfill the obligations prescribed by the contract suffered losses, to the other party claim behavior. In practice, a claim is a two-way street, the construction unit and the construction units may claim. Usually, claim "means the contractor (construction unit) in the implementation of the contract, the causes of non-self engineering extension of time, cost and increase demand for the compensation of losses to the owner a claim. And the owner (the construction units) for the construction unit shall bear the responsibility belongs to cause, and the actual loss happened, ask for compensation to the construction unit, called reverse claim for compensation. The nature of the economic compensation claims belongs to behavior, not punished. In the general claim can negotiate way through friendly solution, if both sides can't reach a compromise, the dispute by arbitration can solve. Can claim from different angles, and according to the different standards of the following categories: (1)The cause of the classification Such as preparation for construction, process control, quality control and cost control and management of causes of claim for compensation, this classification can explicitly pointed out that each and every one of the source of the claim, make the owner and engineers to audit analysis. (2) The purpose of the claim, according to classification It can be divided into the time limit and expenses claims claim. Time limit is to ask the owner claims extended construction time, make the original provisions of the project completion date postpone so as to avoid the breach of the fine occurred; Cost is to ask the owner and the contractor claim the compensation fees loss and adjust the contract value. (3) According to claim the basis of classification It can be divided into the stipulations in the contract, the contract of the claim. The stipulations in the contract is to point to claim the claim involving content in the documents to find the basis, the owner or the contractor can then put forward the claim. This claim is not so easy to dispute; The contract is the claim to the content of the claim involving in the documents without dedicated word narrative, but can according to the contract terms of some meaning, deduced that a certain resulting. (4) According to claim the relevant parties of classification It can be divided into the contractor with the owner of the between claim; The contractor with points between the contractor's claim; The contractor with suppliers claims; The contractor to the insurance company, shipping company's claim etc. (5) According to the nature of the business claim classification It can be divided into the engineering claims and business claim for compensation. The engineering claims is referred in the construction of the project construction conditions or construction technology, construction scope change claim for compensation, commonly occur high frequency, claim expenses; Business claim is refers to the implementation of the project process materials purchase, transportation, storage, etc of activities create claim matters. (6) According to claim the processing means of classification It can be divided into single claims and always claim for compensation. Single claims about a claim is to take the approach, that is, according to each claim after in the items, and submit them to the notice of a claim, prepare claim for single solve pay, not with other claims are mixed with the matters; Always claim, and says the comprehensive claims or package claim, that is, the whole project (or a project) that happens in a number of claims matters, comprehensive together for the compensation. 1.2 The owner claims to the contractor The claim was two-sided, generally called claim to the owner's claim to the contractors, the claim to the contractor's claim to the owner.1.2.1 Claim reason The contractor's default have different situation, sometimes is all or part of the contract, some time is not to execute the contract. For the contractor to breach of proof by supervision engineer, the owner according to contract the corresponding provisions of the treatment method of punishment for the contractor. The contractor's breach the following kinds roughly include: (1) Not submitted for the performance guarantee; (2) According to the contract of insurance regulation no; (3) Because of the contractor's responsibility delaying; (4) The quality defect, the contractor shall by supervision engineer instruction repair defects at outside, still need to the owner of the quality defects caused loss of responsibility; (5) the contractor to unqualified material doesn't perform supervision engineer instruction to out of the site, and the quality accidents didn't appear to repair or unable to repair, the owner must send someone or hire others to do the above, and pay the expenses should be made by the contractor burden; (6) The contractor that the design of the design drawing responsibility; (7) The contractor bankruptcy or serious breach of contract has to terminate a contract; (8) Some other reasons. 1.2.2 Handling claims Appear afore-mentioned incident, general can take the following several methods compensation owner loss: (1) Payable to the contractor from the middle of the progress payment deduct inside. (2) Retention deduct from within. Retention is owner to prevent accidents because of the event and suffer loss of a security measures, and can be used in the responsibility for the contractor caused not qualified engineering cost rework, solve the other party with contractors proposed and the contractor the refusal of payment funds, such as the contractor responsibility for damage highway facilities, transportation department to owner claim. Of course for the first with the contractor shall negotiate and get his approval. Retention than the performance guarantee it more convenient, the performance guarantee normally only in the contractor serious breach of contract to use. (3) From within the performance guarantee deduction or confiscate the performance guarantee. (4) If the contractor a serious breach of contract, brings owners even take the above all kinds of measures was enough to compensate for losses, also can withhold the contractor in the materials, equipment, temporary facilities as compensation property, or by the law as a contractor a debt and demand compensation. 1.3 The contractor to owner claims The contractor for a long time at low profits and high risk under the environment of the projects, must always have the face of market and risk of fully prepared for that. In terms of the FIDIC contract claim many, contractor will often quoted claim generally in these terms, including 12 of more important, it is the foundation of the claim, the central meaning is: in the execution of the contract, the contractor had made up standard do not meet can claim for compensation. 1.3.1 Caused by the contract documents claim Once signed the contract, the parties have binding force, the binding legal protection. Contract documents including range is very wide, the most is the contract conditions, technical specifications, etc. Generally speaking, drawings and specifications of the problems occurred less, but also can appear each other do not agree with the original drawings or supplement not consistent, as well as to the technical specifications of the different explanations, in the case of the claim, about the contract conditions, quantity and price list problems more. The contents of the claim of the conditions of the contract in the following two aspects: (1) The composition of the contract documents from a claim for compensation. The contract is in the bidding by both parties through consultation after modification of the final determination, if change already will bid for contractor and the owner or before and after the tender committee out document clarified the contract and sign the documents to clear, he should explain the contract before officially signed all kinds of documents are no longer effective associate. If you ignore this announcement, when letters content and the content are contradictory, be easy to cause the dispute to claim for compensation. (2) The contract defects. The contract for contract performance defects file does not rigorous even contradictory and contract of missing or mistake. This includes not only the commerce clause of the defects, including technical specifications and drawings of the defects. To this, the supervision engineer shall have the right to make explanation, but if the contractor execution explains caused by increased costs or extension, is entitled to therefore put forward a claim for compensation. 1.3.2 Because accident risk and unforeseeable causes of claims During the execution of the contract, if the accident risk and unforeseeable factors and the loss, he shall have the right to demand compensation to the owners. Accident risk including force majeure loss caused by natural disasters and special risk events are two content. (1)Human is irresistible in natural disasters. Natural disasters economic loss this to insurance company claims for compensation. In addition, the contractor also has the power to owner requirements be postponed to the time limited, the claim is also put forward period. (2) Special risks. The contract conditions shall be stipulated in shall be undertaken by the owner of the responsibility of 5 war risk occurs of the consequences of many is serious, the contractor in addition to wrong the resulting personal casualty and property loss is responsible for outside, and instead should get any has completed the permanent works and materials payment, reasonable profit, interruption losses and construction all repair expenses and reconstruction expenses. 1.3.3 Unfavorable natural conditions Unfavorable natural conditions is to point to even experienced contractor in the proposal stage use the information provided in the bidding documents and through the investigation also cannot reasonably be expected to adverse construction conditions. If encountered in the construction of the rich groundwater, geological fault, natural cave, subsidence, affect change the original construction method, reduce the construction speed or increase the quantity, the contractor may request period and the cost of the claim. 2.3.4 Encountered in the construction of the underground cultural relics or structures As long as it is encountered in the construction of the contract documents not stated in the underground cultural relics or structures, supervision engineer should press with engineering change, the contractor shall have the right to make a time limit and expenses claims. 2.3.5 Design drawings or mistakes in the work scale To the contractor in the tender, drawings or work scale sometimes will inevitably be wrongs, and if due to correct these mistakes and make the increased cost or extension, the contractor shall have the right to lodge a claim against you. This kind of mistake includes: (1)Design drawings and the requirements of the work scale discrepant. Engineering quotation is calculated according to work scale, if construction according to the drawing will lead to higher costs. The contractor in found this problem should be timely after please supervision engineer confirmation (2)The site conditions and the requirement of design plan large difference, and greatly increase the workload. If the workload increases a lot, contractor shall also carry off, and accordingly to owner to put forward the claim. (3)Pure mistakes on work. Even if is the fixed price contract type, if the workload is larger in and out, affect the whole construction plan, contractor shall also win compensation. 附录B 中文译文工程索赔相关问题理论摘要本文对工程索赔相关理论作了一定研究，并对工程索赔含义分类及业主和承包商之间索赔进行了理解。 1.1 工程索赔与反索赔含义及分类索赔是在工程承包合同履行中，当事人一方由于另一方未履行合同所规定的义务而遭受损失时，向另一方提出索赔要求的行为。在实际工作中，索赔是双向的，建设单位和施工单位都可能提出索赔要求。通常情况下，索赔是指承包商（施工单位）在合同实施过程中，对非自身原因造成的工程延期、费用增加而要求业主给予补偿损失的一种权利要求。而业主（建设单位）对于属于施工单位应承担责任造成的，且实际发生了损失，向施工单位要求赔偿，称为反索赔。索赔的性质属于经济补偿行为，而不是惩罚。索赔在一般情况下都可以通过协商方式友好解决，若双方无法达成妥协时，争议可通过仲裁解决。索赔可以从不同角度、按不同的标准进行以下分类：(1)按索赔发生的原因分类如施工准备、进度控制、质量控制、费用控制及管理等原因引起的索赔，这种分类能明确指出每一项索赔的根源所在，使业主和工程师便于审核分析。(2)按索赔的目的分类可分为工期索赔和费用索赔。工期索赔就是要求业主延长施工时间，使原规定的工程竣工日期顺延，从而避免了违约罚金的发生；费用索赔就是要求业主或承包商双方补偿费用损失，进而调整合同价款。(3)按索赔的依据分类可分为合同规定的索赔、非合同规定的索赔。合同规定的索赔是指索赔涉及的内容在合同文件中能够找到依据，业主或承包商可以据此提出索赔要求。这种索赔不太容易发生争议；非合同规定的索赔是指索赔涉及的内容在合同文件中没有专门的文字叙述，但可以根据该合同某些条款的含义，推论出一定的索赔权。(4)按索赔的有关当事人分类可分为承包商同业主之间的索赔；总承包商同分承包商之间的索赔；承包商同供应商之间的索赔；承包商向保险公司、运输公司的索赔等。(5)按索赔的业务性质分类可分为工程索赔和商务索赔。工程索赔是指涉及工程项目建设中施工条件或施工技术、施工范围等变化引起的索赔，一般发生频率高，索赔费用大；商务索赔是指实施工程项目过程中的物资采购、运输、保管等方面活动引起的索赔事项。(6)按索赔的处理方式分类可分为单项索赔和总索赔。单项索赔就是采取一事要索赔的方式，即按每一件索赔事项发生后，报送索赔通知书，编报索赔报告，要求单项解决支付，不可与其他的索赔事项混在一起；总索赔，又叫综合索赔或一揽子索赔，即对整个工程（或某项工程）中所发生的数起索赔事项，综合在一起进行索赔。1.2 业主向承包商索赔索赔是双方面的，一般索赔是指承包商向业主的索赔。而反索赔是指业主向承包商的索赔。 1.2.1 索赔理由承包商的违约有各种不同的情况，有时是全部或部分地不履行合同，有时是没有按期履行合同。对承包商的违约行为经监理工程师证明后，业主都可以按照合同相应规定的处理办法对承包商进行处罚。承包商的违约行为大致可包括以下几种： (1)没有如约递交履约保函； (2)没有按合同中的规定保险； (3)由于承包商的责任延误工期； (4)质量缺陷，承包商除应按监理工程师指示自费修补缺陷外，还须对质量缺陷给业主造成的损失承担责任； 待添加的隐藏文字内容2(5)承包商对不合格材料没有执行监理工程师指示按期运出工地，以及出现的质量事故没能按期修复或无力修复，业主必须自己派人或雇请他人完成上述工作，而支付的费用应由承包商负担； (6)承包商所设计图纸的设计责任； (7)承包商破产或严重违约不得不终止合同； (8)其他一些原因。1.2.2 索赔处理方式出现上述事件后，一般可采取下列几种方法补偿业主损失。 (1)从应付给承包商的中期进度付款内扣除。 (2)从滞留金内扣除。滞留金是业主为防止因不测事件而遭受损失的一种保障措施，可用于因承包商责任造成不合格工程的返工费用，解决与承包商有关的其他当事人提出的而承包商拒付的款项，如因承包商责任损坏公路设施，交通部门向业主提出的索赔要求。当然用于这种情况时首先应与承包商协商并得到他的同意。滞留金比履约保函用起来更为方便，履约保函一般只能在承包商严重违反合同时才能使用。 (3)从履约保函内扣除或没收履约保函。 (4)如果承包商严重违反合同，给业主带来了即使采取上述各种措施也不足以补偿的损失，还可以扣留承包商在现场的材料、设备、临时设施等财产作为补偿，或者按法律规定作为承包商的一种债务而要求赔偿。1.3 承包商向业主索赔承包商长期处在低利润和高风险的环境下运作项目，必须时刻有面对市场和风险的充分的心理准备。在FIDIC合同里索赔的条款很多，承包商一般在索赔时会经常引用这些条款，其中第12款更为重要，可以说它是索赔的基础，其中心意思是：在合同的执行过程中，承包商面临编写标时不可遇见的情况才可以索赔。1.3.1 合同文件引起的索赔合同一旦签订，对双方当事人都有约束力，这种约束力受法律保护。合同文件包括的范围很宽，最主要的是合同条件、技术规范说明等。一般来说，图纸和规范方面发生的问题要少些，但也会出现彼此不一致或补充与原图纸不一致，以及对技术规范的不同解释等问题，在索赔案例中，关于合同条件、工程量和价格表方面出现的问题较多。有关合同条件的索赔内容常见于如下2个方面： (1)合同文件的组成问题引起索赔。合同是在投标后通过双方协商修改最后确定的，如果修改时已将投标前后承包商与业主或招标委员会的来往函件澄清后写入合同补遗文件并签字，就应当说明合同正式签字以前的各种来往文件均不再有效。如果忽略了这个声明，当信件内容与合同内容发生矛盾时，就容易引起双方争执而导致索赔。(2)合同缺陷。合同缺陷表现为合同文件不严谨甚至矛盾，以及合同中的遗漏或错误。这不仅包括商务条款中的缺陷，也包括技术规范和图纸中的缺陷。对此，监理工程师有权做出解释，但如果承包商执行解释后引起成本增加或工期延长，则有权为此提出索赔。1.3.2 因意外风险和不可预见因素引起的索赔合同执行过程中，如果发生意外风险和不可预见因素而使承包商蒙受损失时，他有权向业主要求给予补偿 。意外风险包括人力不可抗拒的自然灾害所造成的损失和特殊风险事件两项内容。 (1)人力不可抗拒的自然灾害。自然灾害的经济损失该向保险公司索赔。除此之外，承包商还有权向业主要求顺延工期，也就是提出工期索赔要求。 (