工程管理 外文翻譯 外文文獻(xiàn) 英文文獻(xiàn) 淺談工程索賠的預(yù)防與處理

1、talking about the project claim the prevention and treatmentabstract：in project management, construction claim is a complex business management. today's domestic project contracting market is becoming more competitive, successful low-cost has become a regular operation, the operating contractor

2、for the construction of the claim is very important to achieve the goal. the significance of the claim and described the concept for today's domestic construction projects in claims management problems were analyzed and the corresponding countermeasures and suggestions of the project and counter

3、-claims both sides claim the contract is an indispensable business component. based on the analysis of the factors that claims the project, discussed the contract on the implementation of the project claim the deal with the principles and specific treatment. key words: engineering claim prevention d

4、eal with1. the definition and classification of claims claim the project is the fulfillment of the contract, the contract due to the other party did not fulfill its obligations under the contract and this led to losses, other demands for compensation or the right to compensation. the incidence of cl

5、aims is a two-way, as long as the contract side of the responsibility and obligation not to achieve contract, or to provide the conditions inconsistent with the contractual status, there are claims that may arise. it is also a kind of a right, under normal circumstances, the claim refers to the cont

6、ractor in the implementation of the contract process, the reasons for their non-extension of the project, and require owners to increase the cost of compensation for the loss of a claim. the owners belong to the construction unit should bear the responsibility for the cause, and the actual loss to t

7、he construction of requests for compensation, known as the anti-claim.1.1 the purpose of their claims can be divided into two categories: construction claims and claims costs.claim construction engineering refers to, as a result of non-responsibility of the contractor causes delay in the constructio

8、n process for approval of the contract extended period of the claim. construction units of the purpose of the claim period is usually two: first, removed or have been shirking its responsibility to extend the duration of the contract responsibility, so that they do not pay as much as possible or not

9、 to extend the time limit to pay fines; ii is due to extension of the period and the cost of damage caused by the claim. if the project is not the responsibility of delay caused by the construction, and construction units have been approved construction project claim, the construction units can be m

10、ade as a result of measures taken to speed up and increase the cost of claims. the cost of claims is based on the principle of compensation for actual losses, and its purpose is to require financial compensation. when the reality of the conditions of the contract and inconsistent, leading to increas

11、e in contractor expenses in excess of the requirements of the plan's cost of the additional compensation expenses, in order to save his commitment should not be economic losses.2. the cause of the project claim2.1 engineering design arising from claims. as the construction drawings in error

12、 or defective, working drawings and the actual construction site in geology, environment, or the difference between the design drawings and specifications does not match the description of expression is not tight construction, equipment, materials, the name of the model specifications that or the wr

13、ong amount of work is not clear and many other aspects of the flaws and omissions, resulting in rework. inevitable in order to produce in the period, the labor, materials, and other aspects of the claims.2.2 do not close the signing of the contract arising from claims  the contract is a contrac

14、t agreement, the tender documents, tender, contract-specific provisions, general provisions of the contract, drawings, boq and to fulfill the contract in the course of a series of supplementary agreements such as the composition of the document, the contracts signed between the two sides in accordan

15、ce with the law the entry into force, legally binding, either party may change or dissolve the non-performance of the contract or the powers and duties. however, due to construction projects and the complexity of the construction period, as well as the natural environment, climate, such as long-term

16、 factors, together with the terms of the contract in terms of security is not strong, between the conflicting documents, are likely to make the parties enter into the construction contracts can not take full account of all factors and a clear impact on the project, which led to the construction of t

17、he claim.2.3 the risk of accidents and unforeseen factors such as changes in the conditions of the claimduring the construction process, changes in the conditions of the construction site of the project cost and impact, such as earthquakes, typhoons, war, rebellion, radioactive pollution and nuclear

18、 hazards, such as force majeure risks and natural disasters as well as the construction of sand mud emerged, geological fault, natural cave, subsidence and underground structures or objects on the ground floor, and other unknown obstacles, often leading to the changes caused by the construction clai

19、m. if excavation works due to the discovery of underground structures and cultural relics, and so on, the drawings did not say construction indeed difficult to foresee a reasonable man-made obstacles, such as the deal is bound to lead to an increase in the cost of the project, the construction units

20、 can claim.2.4 project construction contracts management changes in the claim.the current construction market, the project construction contracts have a total package, sub-, sub-designate, contract labor, equipment, materials supply contract and a series of contract, so as to enable the project cons

21、truction contracts and management has become complicated by the difficulty great. when any of the contracts can not perform well or poorly managed, will affect the project construction period, the quality and quantity, sparking the project, quality, quantity and economic aspects of the claim. such a

22、s equipment, material suppliers, according to the project's design and construction schedule on time in accordance with the provision of quality equipment, materials, engineering, can not by the owners of the requirements and design specifications and the specifications for the construction, so

23、as to affect the project construction the progress and quality, leading to the owners, with a total package side, the sub-side, the equipment and materials suppliers mutual claims.3 works to prevent and deal with the claims. 3.1 the project prevention claimsof the above factors in the anal

24、ysis of the project claim, the claim works, as owners of the management of the main square in the prevention and treatment efforts must be dealt with the principles and specific ways to deal with, making a reasonable claim for compensation evidence to ensure the progress of the construction project,

25、 quality, the cost of a virtuous circle. should do the following specific areas:3.1.1 to strengthen the claim of forward-looking prevention. as owners, supervision engineers and contractors must use their experience and the relevant regulations, to take active measures to prevent foreseeable cl

26、aims the incident occurred. such as strengthening the management of the contract, to strengthen preparatory work to strengthen the design review, and so on. however, if the claim is indeed taken place, should take active measures to control claims costs to a minimum.3.1.2 in market economy cond

27、itions, the contract is binding both a and b criterion of economic behavior. as the owner's managers should pay attention to fully and strictly carry out the contract. before signing the contract should be repeated, as appropriate, the terms of the contract, pay attention to the strict letter of

28、 the contract documents, in order to prevent the implementation of the contract process as a result of loopholes in the text caused by the opportunity to claim, resulting in additional investment. in the design of management should strive to obtain the contract by design drawings, data, and units de

29、signed to improve the quality of design, conditions permitting the introduction of the design competition, designed to improve the quality of service. jp2through the design of the credibility of the tender selection, design, management capacity in areas such as better design of the unit, designed to

30、 reduce as much as possible the reasons for increase in the risk of project cost, the latter designed to improve the quality of service.3.1.3 in the supply of materials, equipment and materials should be done on time and the supply, quality volume. as far as possible to avoid the supply of material

31、specifications of the type, variety and not caused by the drawings of alternative materials. 3.1.4 the price may rise to the claim by the construction tender will be taken to increase the risk of a package as a death order to guard against the practice, that is, in business contracts, according

32、 to the length of period, the market price trend forecast, the two sides to agree on a cost risk to the contractors and contract during the construction of national and local government policy documents are no longer the implementation of price adjustment.3.2 engineering claims. 3.2.1 should be base

33、d on a contract basis to deal with claims must be reasonable; have to pay attention to data collection, information truthfulness, reliability, and after that must deal with claims in a timely manner; in dealing with the specific claims process, we must a close examination of the period when the clai

34、ms should be given, should be given when the cost of claims. for example: an extremely bad weather conditions, we have exceeded the expected normal rain and snow, seriously hampering the progress of projects at this time, the construction units may be required, the owner can grant an extension perio

35、d, that is, the establishment of the claim period, but the cost should not be claim. for instance, in the works in full swing during part of the project changes, construction has been finished on the part of the change and wait for the drawings when part of the construction and mechanical requiremen

36、ts of the claim, this time, to have been part of the end of the claim, it should benefit all, including the costs and profits, but stagnation and machinery, due to the time when the construction season, it is entirely possible that this first part of the personnel, machinery to use elsewhere, to be

37、paid should be the only change of duty and the types of work efficiency to lower costs.3.2.2 to deal with claims in the event of limitations should be carried out inspection, the building of china's construction contracts (gf-1999-2001) in the light of international common fidic conditions of co

38、ntract claim against the statute of limitations provides as follows: "the claim occurred within 28 days of engineers to issue a claim notice; issued a notice of claim within 28 days to raise additional engineers to extend the duration of the contract price or the claims report and related infor

39、mation; engineers sent to the contractor received the report and claims information after the 28 days given to sign rehabilitation, or ask the contractor to add further grounds for the claim and evidence. engineers in 28 days or did not respond to the contractor for further requirements, as the clai

40、ms have been approved. " excess of the limitation period for claims, as the case may have the right to refuse. at the same time, the claim should be effective to deal with in a timely manner. 3.2.3 should clearly define the responsibilities, strict examination fees. the claim of actual events a

41、re often responsible for both contracts, which should identify the reasons, clearly define responsibilities and in accordance with the terms of the contract's pricing review to determine the contract that both sides should bear the cost.3.2.4 should work to strengthen the control of the ini

42、tiative, works to reduce the claim. this requires the owners in project management, as far as possible the work should be made in advance, to reduce the incidence of claims. this will enable the project to carry out more smoothly, reducing investment projects to reduce the construction period. to su

43、m up, the claim for the prevention and management of investment projects to control play an important role in the international engineering construction in general will be designed to claim the contract price of 10-15% in individual cases even more. in order to better handle the construction of the

44、claims the problem from the project to strengthen the construction plans and construction contract management, strengthen personnel training to start, actively explore and practice. references 1 wu yuan, wu yin, china's construction industry, claims the status quo and countermeasures j. economis

45、t, 2006, (3). 2 xu wei, jin fu, chen lianjie. standardize the implementation of the construction project supervision manual m. beijing: china building industry press, 2001. 3 dong cheng hai, zhang jiansheng. analysis of construction contract management problems and solutions j. modernization constru

46、ction management, 2001, (1). 4 cheng hu. encyclopedia of practical construction contract management m. beijing: china building industry press, 2000, (1). 淺談工程索賠的預(yù)防與處理學(xué) 生：張 曦 指導(dǎo)教師：王春燕三峽大學(xué)科技學(xué)院摘要：在工程項(xiàng)目管理中,施工索賠是一項(xiàng)復(fù)雜的經(jīng)營管理工作。當(dāng)今國內(nèi)工程項(xiàng)目承包市場競爭日趨激烈,低價(jià)中標(biāo)已成為規(guī)律性的操作方式,施工索賠對于承包商經(jīng)營目標(biāo)實(shí)現(xiàn)非常重要。 對索賠的意義和概念進(jìn)行了闡述，對當(dāng)今國內(nèi)施工項(xiàng)目索

47、賠管理中存在的問題進(jìn)行了分析，并提出了相應(yīng)的對策和建議工程索賠與反索賠是合同雙方經(jīng)營活動(dòng)不可缺少的組成部分。本文通過對工程索賠因素的分析，論述了在合同執(zhí)行中關(guān)于工程索賠相應(yīng)的處理原則及具體的處理方式。關(guān)鍵詞：工程；索賠；預(yù)防；處理1 索賠的定義及分類索賠是指在工程承包合同履行中，合同當(dāng)事人一方由于另一方未履行合同所規(guī)定的義務(wù)而致使本方遭受損失時(shí)，要求對方給予賠償或補(bǔ)償?shù)臋?quán)利。索賠的發(fā)生是雙向的，只要合同中一方的責(zé)任和義務(wù)未按合同約定實(shí)現(xiàn)，或出現(xiàn)提供的條件與合同約定狀態(tài)不一致，都有可能出現(xiàn)索賠。它既是一種權(quán)利也是一種行為，通常情況下，索賠是指承包商在合同實(shí)施過程中，對非自身原因造成的工程延期、費(fèi)

48、用增加而要求業(yè)主給予補(bǔ)償損失的一種權(quán)利要求。而業(yè)主對于屬于施工單位應(yīng)承擔(dān)責(zé)任造成的，且實(shí)際發(fā)生了損失，向施工單位要求的賠償，稱為反索賠。1.1 索賠按其目的可分為兩類：工期索賠和費(fèi)用索賠。工期索賠是指在工程施工中，由于非承包人責(zé)任的原因而導(dǎo)致施工進(jìn)程延誤，要求批準(zhǔn)順延合同工期的索賠。施工單位提出工期索賠的目的通常有兩個(gè)：一是免去或推卸自己對已產(chǎn)生的工期延長的合同責(zé)任，使自己不支付或盡可能不支付工期延長的罰款；二是進(jìn)行因工期延長而造成的費(fèi)用損失的索賠。如果工期延緩責(zé)任不是由施工單位造成，而建設(shè)單位已認(rèn)可施工單位工期索賠，則施工單位還可以提出因采取加速措施而增加的費(fèi)用索賠。費(fèi)用索賠是以補(bǔ)償實(shí)際損失

49、為原則，其目的是要求經(jīng)濟(jì)補(bǔ)償。當(dāng)現(xiàn)實(shí)的條件與合同約定不一致，導(dǎo)致承包商增加開支，要求對超出計(jì)劃成本的附加開支給予補(bǔ)償，  以挽回不應(yīng)由他承擔(dān)的經(jīng)濟(jì)損失。2 工程索賠的發(fā)生原因 2.1要程設(shè)計(jì)方面引起的索賠由于施工圖紙中存在缺陷或錯(cuò)誤，施工圖與現(xiàn)場實(shí)際施工在地質(zhì)、環(huán)境等方面的差異或是設(shè)計(jì)的圖紙與規(guī)范要求不符，施工說明表達(dá)不嚴(yán)密，對設(shè)備、材料的名稱、規(guī)格型號(hào)表示不清楚或工程量錯(cuò)誤等諸多方面的遺漏和缺陷，造成返工。從而不可避免的產(chǎn)生如在工期、人工、材料等方面的索賠要求。2.2合同簽訂不嚴(yán)密引起的索賠合同是由合同協(xié)議書、招標(biāo)文件、投標(biāo)書、合同專用條款、合同通用條款、圖紙、工程量清單及合同履行

50、過程中的補(bǔ)充協(xié)議等一系列的文件所組成的，經(jīng)承發(fā)包雙方依法簽訂生效，具有法律約束力，任何一方不得擅自變更或解除或不履行合同賦予的權(quán)力和義務(wù)。但由于工程項(xiàng)目建設(shè)的復(fù)雜性和施工工期以及自然環(huán)境、氣候、周期長等因素的限制，加上合同中用詞嚴(yán)密性不強(qiáng)、文件之間的相互矛盾等，都有可能使雙方在簽訂施工合同時(shí)不能充分考慮和明確各種因素對工程建設(shè)的影響，從而引起施工索賠。2.3 意外風(fēng)險(xiǎn)和不可預(yù)見因素等條件的變化引起的索賠在施工過程中，施工現(xiàn)場條件的變化對工期和造價(jià)影響很大，如地震、臺(tái)風(fēng)、戰(zhàn)爭、叛亂、放射性污染、核危害等人力不可抗拒的自然災(zāi)害和風(fēng)險(xiǎn)以及在施工中出現(xiàn)流沙泥、地質(zhì)斷層、天然溶洞、沉陷和地下文物或構(gòu)筑物

51、等地下不明障礙物，常常導(dǎo)致工程變更，引起施工索賠。如在挖方工程中由于發(fā)現(xiàn)地下構(gòu)筑物和文物等，圖紙上并未說明，確屬施工單位難以合理預(yù)見的人為障礙，如處理則必然導(dǎo)致工程費(fèi)用的增加，施工單位即可提出索賠。2.4 工程項(xiàng)目建設(shè)承發(fā)包管理模式變化引起的索賠當(dāng)前的建筑市場，工程項(xiàng)目建設(shè)承發(fā)包有總包、分包、指定分包、勞務(wù)承包、設(shè)備、材料供應(yīng)承包等一系列的承包方式，使工程項(xiàng)目建設(shè)承發(fā)包變得復(fù)雜和管理模式難度增大。當(dāng)任何一個(gè)承包合同不能順利履行或管理不善時(shí)，都會(huì)影響工程項(xiàng)目建設(shè)的工期、質(zhì)量和數(shù)量，繼而引發(fā)在工期、質(zhì)量、數(shù)量和經(jīng)濟(jì)等方面的索賠。如設(shè)備、材料供應(yīng)商不按工程項(xiàng)目的施工進(jìn)度和設(shè)計(jì)要求按時(shí)按質(zhì)提供設(shè)備、材料，工程也就不能按業(yè)主的要求和設(shè)計(jì)的質(zhì)量規(guī)格以及有關(guān)規(guī)范要求進(jìn)行施工，從而影響工程項(xiàng)目建設(shè)的進(jìn)度和質(zhì)量，最終導(dǎo)致業(yè)主、總包方、分包方、設(shè)備材料供應(yīng)商相互間的索賠。3 工程索賠的預(yù)防及處理3.1工程索賠的預(yù)防通過以上對工程索賠因素的分析，對于工程索賠，作為業(yè)主方的管理主要是在預(yù)防和處理方面下功