Typical controversy and judicial judgment views of roof distributed photovoltaic projects

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Original Hao Li Wang Weijin Chongzhong Lunlun World 2023-10-30 17:08 Posted in Beijing

In recent years, the number and installation capacity of the roof distributed photovoltaic projects have shown rapid growth, and various legal disputes in project operation have also appeared.Therefore, how to combine the tendency of judicial practice to avoid and effectively respond to project risks in advance, it is worthy of high attention to related practitioners.

Author 丨 Hao Li Wang Weijinchong

Due to the characteristics of low investment thresholds, short construction cycles, and high returns, the roof distributed photovoltaic project has become a hot spot in the field of new energy investment in recent years.During the operation, such projects may involve multi -subject subjects such as project companies, power consumptions, and roof owners, and may form a variety of legal relationships such as purchase and sale, housing leasing, cooperative development, etc., resulting in more disputes in practice.To this end, we pay special attention to various typical legal disputes involving roof distributed photovoltaic projects, and consulted more than 300 related judicial cases.Summarize the referee views in the past judicial practice, and combine the practical experience of our agency distributed photovoltaic cases, put forward relevant suggestions for reference for people in the industry.

1. Typical disputes of the nature and effectiveness of energy management contracts

In practice, the energy management contract is usually defined as a comprehensive unknown contract containing two aspects of "power supply" and "roof provision". For example, the Supreme People's Court adopted this determination in the relevant judgment of 2020.For the former, in practice, it is generally recognized to constitute a legal relationship with power.[1]But for the latter, whether it constitutes a "lease relationship" or "cooperative relationship", there are often disputes, and case judgments are required.

(1) There is a risk that cannot be directly applied to the lease protection rules under the cooperative relationship

If the project company obtains the roof through the "lease relationship", it can apply the rules of "buying and selling" in Article 725 of the Civil Code.At the same time, when the acquisition and demolition occurred, the project company also has the possibility of claiming the loss of production and suspension of business and suspension based on local regulations, such as the provisions of Article 15 of the "Implementation and Compensation Implementation Measures on the State -owned Land on the State -owned Land in Hebei Province".EssenceCorrespondingly, the provisions of the lease period shall not exceed 20 years, and the part of more than 20 years may be invalid.

If the project company obtains the roof through the "cooperative relationship", the author understands that although the restrictions of the "Civil Code" to a certain extent can to a certain extent, it may not be able to directly advocate the application of the aforementioned "buying and selling without breaking lease" and "loss of production and suspension of business".The relevant protection regulations are damaged by the stability of the project.For example, in (2022) Zhejiang 06 Pinning No. 4075 case, the project company and the roof owner agreed to adopt the "zero rent" model. Although the word "rent" in the energy management contract involved in the case, the court still believed that "the rent and the rent and the rent and the rental andLeasing is essentially different, and there is no agreement on the rent in the contract, so this case is not a lease contract dispute. "Based on the principle of contracted relativity, in the aforementioned case, the court believes that the project company has no right to advocate the new owner of the residential house to continue to perform the energy management contract or request compensation for losses.

(2) The lack of houses in the construction project planning permit will cause the lease contract to be invalid

The second explanation of the "Supreme People's Court on the Specific Applied Laws of the Town House Leasing Contract Dispute Cases" clearly stipulates that "the lessor will not obtain a house planning permit for construction engineering or in accordance with the provisions of the construction project planning permit.The lease contract set up with the lessee is invalid. "Therefore, if the house involved in the project has not obtained a construction project planning permit and a planned land planning permit, there is a risk of invalid lease relationship.For example, in the (2023) case of Jingminshen No. 1229, the Beijing High Court has invalidated the roof lease agreement involved in the project involved in the project involved in the project planning permit for not obtaining the construction project planning permit.

Therefore, the project company needs to pay special attention to the compliance of the renting roof itself, and the current project must be fully checked in the real estate certificate involved in the development item.If the real estate certificate is not applied, at least it should ensure that it obtains the construction project planning permit and complete the planning acceptance, otherwise there will be an invalid risk of the roof lease relationship.In practice, because the registration process of many regions for collective operating construction land is not yet clear, it may lead to a certain amount of uncertainty in obtaining the obtained of the construction project planning permit.Terminal.In addition, the houses within the scope of facilities and agricultural land are also unable to apply for a construction project planning permit, and the project company should pay attention to this.

2. Typical disputes related to electricity bills for project companies

The legal relationship of power use is one of the core contents of the energy management contract. In practice, there are relatively many litigation cases caused by electricity bill claims. Especially on the issues of how to determine the claims, whether the contract can be terminated, and the adjustment of electricity price adjustment is worthy of all parties.focus on.[2]

(1) The project company can consider directly advocating electricity bills directly to actual power consumption on the grounds of forming a factual contractual relationship.

Due to the factors such as industrial upgrading, after the completion of distributed photovoltaic projects in practice, the tenants of the house involved in the project may change, and the parties may not change or sign supplementary contracts to the original energy management contract, resulting in actual use of actual useThe electric side is not a signing of the electricity.Under such circumstances, judicial practice is usually based on the principles of contract relativity. It is believed that the project company can only claim electricity bills from the contract.

However, there are also a small number of cases in judicial practice, which provides a reference path to the actual power consumption of the project company directly.For example, in the (2020) Luli 13 Pinning 4445 case, the plaintiff project company in the two audit procedures on the grounds of "improper profit" and "general formula for energy management contracts" as the actual power recipe, that is, the case involved in the case, which is involved in the case involvedThe new rented by the factory claims the electricity bill.Although the two reasons have not been recognized the previous two reasons, the court believes that the project company and the actual use of electricity "the two parties" with negative facts as a legal relationship for forming power supply ", and finally supported the project company's pair on the grounds of" forming a factual contract relationship ".Actual power consumption of electricity costs.

However, it should be noted that although the aforementioned case is existed, the path is observed that this path is not a common situation in practice. The difficulty of claiming the project company directly to the actual power party is still large, and because the people's court will deduct part of the deduction of part of the deduction of part of the deduction of part of the deduction of part of the deduction of part of the deduction of part of the deduction of part of the caseThe revenue obtained by the roof owner, so the ultimate power fee may be lower than the amount agreed in the contract.Therefore, if the power supply may involve a third -party subject, the project company should still try to coordinate the signing of the energy management contract for three parties, or obtain a third -party payment confirmation, or at least the introduction, replacement, elimination, settlement, settlement, etc. in the contract, etc.Make an agreement.

(2) The project company claims that the difficulty of lift the contract is more difficult to relocate the contract.

The termination of the contract is the ultimate means to resolve the deadlock in the contract, so there are certain restrictions on the exercise of the right to lift the right to lift.Therefore, even if the energy management contract is clearly agreed, the court may still review whether the degree of default of the power of electricity for the "National Court of Civil Commercial Trial Works Conference" may be significantly slightly minor, whether it affects the purpose of the contract, and based on honesty, and according to honesty, it is based on honesty.The principle of credit determines whether the contract should be lifted.

In practice, if the project company claims to terminate the contract on the grounds of arrears of electricity bills, and requires the roof owner to bear huge compensation, there may be cases of breach of contract and unbalanced responsibility, which is difficult to obtain court support.For example, in cases of (2019) Lu 1392 Minchu No. 1706, (2019) Lu 1392, Lu 1392, and other cases, the courts all believe that "the plaintiff did not provide evidence to confirm that the contract had been fulfilled and could not be fulfilled."The project company's claim is not supported.Therefore, only if the project company can initially proves that the financial status of the electricity system has deteriorated significantly, or severe arrears of electricity bills will cause the purpose of the contract to be unrealized, can they win the lawsuit.For example, in the case of (2020) Lu 1525 in the Minchu No. 4128, the use of the electricity party for a long time arrears electricity bills and did not propose any reasons for defense.After the promotion, the reason for the termination of the legal contract was not fulfilled within the reasonable period, and then supported the claim of the project company to terminate the contract.

Therefore, for the relief of the roof owner's arrears of electricity bills, it is necessary to further verify the severity of the arrears. If the seriousness of the arrears of the behavior is insufficient, the right to lift the rights of the electricity bill regardless of whether the contract is clear or not, or whether it is agreed to terminate the termination of the cancellation.The subsequent compensation method and the formula of the calculation formula of liquidated damages, and the project company directly advocated that it was more difficult to terminate the contract and the loss of compensation.However, even if the contract cannot be directly lifted, the project company has always had the right to pursue electricity bills from roof owners and the liability for breach of contract with overdue payment.

(3) The policy adjustment of electricity prices can not be included in the category of situation changes

In practice, most of the energy management contracts use reference to the local power grid electricity price discount method to settle the spontaneous part of the electricity fee, but the relevant clauses often do not clearly clear the specific composition of the price, such as it only includes the electricity price itself, or the agency fee also includes the agency fee, Other fees such as online fees, various funds, and other factors such as rent deductions and owners' income sharing.Since then, if the electricity price policy changes, there may be controversy about the actual settlement of electricity price.In addition, there are still a small part of the energy management contract agreed in a fixed electricity price in the practice, and it is not related to the actual electricity price of the power grid. At this time, if the fluctuation of electricity prices is not conducive to the project company, disputes are prone to occur.

From the perspective of judicial cases, the key to whether the claims of both sides can be supported by the aforementioned situation lies in whether the contract is clearly clear.If there is no relevant agreement, some parties may advocate the application of the situation of the application situation in accordance with the provisions of Article 533 of the Civil Code.However, due to the changes in electricity price policies, it is high -frequency. Based on the cases we currently retrieved, the court's tendency to determine the electrical price policy in the practice is not a change in the situation.For example, in the (2022) Zhejiang 05 Pinning No. 151 case, Huzhou Intermediate People's Court believes that the government's adjustment of the sales of electricity prices "is a predictable market law in the business activity, which is a normal business risk category."The composition is sufficient to shake the major changes in the basis of the contract. "For another example, the Nantong Intermediate People's Court believes that the change in the subsidy policy of the new energy project in the case of (2019) Su 06 is "not an unpredictable situation at the time of the contract, so it cannot be determined that the situation after the contract will change."

3. Typical disputes caused by the ownership of the house involved in the project

The distributed photovoltaic project relies on the stability of the leasing relationship. However, during the operation of the power station for more than 20 years, the leased house may have occurred, demolition, seal or mortgaged, and sold, and roof owners may also change or go bankrupt.The changes in the aforementioned rights may cause relevant projects to continue to operate, and there are many controversy in practice.

(1) The lease occurs after mortgage and sealing, and cannot fight the mortgage and seal right holders.

The existing regulations clearly make clear that leasing cannot confront the mortgage right or seizure of the first establishment. Therefore, if there is a mortgage and sealing situation before the lease, the project company cannot ask the new owner to continue to perform the original agreement after the right person exercises the right and dispose of the house.[3]Among the (2020) Su 0902 Du Du, (2021) Lu 09 and No. 65 and other cases, the court rejected the project company requested that the project company required to continue to perform the lease agreement after the house involved in the case was auctioned by the judicial auction of the judicial auction of the house was auctioned by the judicial auction.ask.

Therefore, before the selection of the project roof and signing the contract with the intention of the customer, the project investor should investigate the credit situation of the roof owner, confirming that his appeal and execution can be required.Or seal.

(2) Bankruptcy may lead to the termination of the energy management contract

According to Article 18, paragraph 1, paragraph 1 of the "Enterprise Bankruptcy Law", after the application for bankruptcy applications for the enterprise, the bankruptcy manager has the right to terminate the contract that the two parties have not fulfilled, and the counterparty who has not notified the counterparty within 2 months after the bankruptcy acceptance is not notified of the counterparty party’s parties.It is deemed to be lifted.[4]Therefore, once the roof owner has a bankruptcy situation, the project company must communicate with the manager in time to obtain a confirmation letter to continue to perform the energy management contract.Otherwise, if the bankruptcy manager does not continue to perform the contract clearly, it will be regarded as the contract is automatically lifted after 2 months.If the energy management contract is terminated, the new owners who have obtained the ownership of the house will no longer bear the obligation to provide the roof. It may be directly required to demolish the photovoltaic project or take the opportunity to increase the rent.

According to the above provisions, in judicial practice, it is generally believed that if the manager fails to notice it, the term of 2 months will be deemed to be canceled.However, there are also some exceptions, such as the author's (2020) Zhejiang 01 Case 7053, and Hangzhou Intermediate People's Court accepted our opinion, thinking that the provisions of Article 18 of the Enterprise Bankruptcy Law are in order to be in the bankruptcy procedureThe rights and obligations of both parties of the contract should be clarified as soon as possible. If the manager does not exercise the right to continue performing the contract during the legal period, it loses the right to require the other party to continue to perform, rather than the termination of the contract when the two parties have continued to perform the contract.Therefore, after the roof owner entered the bankruptcy procedure, due to the evidence of the case showing that the project company paid the roof lease fee of the first year, the benefits of the obtained benefits were classified as the roof owner's property, and it involved the lease period that started after the bankruptcy application was accepted.The bankruptcy manager neither refund the rent or the demolition equipment, indicating that it has confirmed that it will continue to perform the case involved in the case with practical behavior.

(3) The mortgage right of the house may be available in distributed photovoltaic project equipment

Given that the BAPV project itself is not a roof of the house, the photovoltaic equipment has a certain degree of distinction from the roof, so it is generally believed that the mortgage right of the house is not of course and in the assets of such projects, such as (2022) Zhejiang 02 Pinning 4005 cases.The Ningbo Intermediate People's Court clearly identified that "the roof photovoltaic is not attached to the real estate involved and cannot be separated, and it should not be handled in accordance with the relevant attached rules of the addition."[5]However, some courts believe that the BAPV project equipment is based on the owner of the house. At the same time, based on the consideration of convenient implementation, the auction execution should be evaluated together, such as (2021) Su 0282 Different cases 117 cases No. 117.[6]

Unlike the BAPV project, the BIPV project directly uses the entire photovoltaic component as an indiscriminate part of the walls, roofs and other buildings during design and construction. The photovoltaic component assumes the corresponding wall and roof functions, and has certain inseparable attributes.[7]Therefore, the identification of such project legal relations in practice is more complicated, and the possibility of the "addition" system will be greater.For example, (2021) Zhejiang 0522 Minchu 5437 case, the court believes that the product rights of the BIPV project will no longer exist after the completion of the BIPV project, but the building owners will be uniformly enjoyed.

Therefore, in order to avoid losing the ownership of the project assets due to attachment, the project company should clarify the rights relationship, asset ownership, and asset division methods of the two parties in the energy management contract, thereby reducing the possibility of adding an attachment system.

Fourth, distributed photovoltaic projects caused disputes caused by roof leakage and damage

During the operating cycle of distributed photovoltaic projects, due to the disassembly of the photovoltaic power plant or other reasons, the roof function is damaged, which causes the roof to leak water and cannot continue to achieve insulation.The liability for compensation is even required to relieve the energy management contract, which has a greater impact on the continuous operation of distributed projects

(1) The roof owner claims to the project company to prove the cause of causality.

If the roof leakage is related to disputes, regardless of whether it belongs to BAPV or BIPV project, the judicial practice generally strictly reviews the causal relationship between roof damage, water leakage and distributed photovoltaic projects.At this time, the appraisal report issued by a qualified third -party institution can be used as a key evidence to determine the existence of causality, such as (2021) Liaoning 0903 Minchu 583 and other cases.

On the contrary, if the plaintiff does not provide strong evidence such as the identification report on the cause and effect, the claim may not be supported

Or it cannot be fully supported, such as:

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(2) The agreement of the energy management contract will directly affect the difficulty of the roof owner's claim

As mentioned earlier, if the owner claims claims due to the leakage of the roof and damage, it is necessary to proof of causality.However, in practice, we also found that some roof owners directly claimed the request of the "guarantee roof function" and "alternative roof" agreed by the project company's violation of the energy management contract, so as to transform the infringement to the default complaint.Dilute the requirements of cause and effect.For example, in the (2022) Zhejiang 06 Pinsen No. 3142 case, the case involved in the energy management contract clearly stipulates that the project company needs to "guarantee the normal use function of the roof", and the project company shall be targeted at the project company to enjoy the contract.Right.In this case, although the project company argued that the plaintiff had not proved that the leakage was caused by a causal relationship with the project involved in the project, and the reasons for the leakage was not identified, due to the existing agreement on the right to cancel the right and proved that the roof "did not realize normal functional functional functional function"The difficulty is less than the causal relationship in the infringement law. The Shaoxing Intermediate People's Court still supports the claim request of the roof owner and the decision to terminate the energy management contract.

Therefore, the project company needs to pay special attention to the contract's agreement on the relevant matters of the roof maintenance to avoid the agreement similar to the "alternative roof" obligation, otherwise it will put greater pressure on the project company after leakage.

In addition, if the relevant rights are not clearly agreed in the energy management contract, the roof owner can only terminate the contract according to the "legal lifting" claim after the leakage.In practice, similar claims are usually difficult to obtain support.For example, in the (2021) Yun 07 Pinning No. 628 case, Lijiang Intermediate Court believes that "as long as the two parties negotiate with each other, the roof leakage can be resolved, and the lease agreement signed by the two parties cannot be fulfilled."Even for BIPV projects, the court has adopted the same point in practice. For example, in (2023) Zhejiang 0111 China Early Chu No. 1780 case, the court believes that the owner of the house owner "has not proved the dispute between the two parties to constitute a fundamental breach of contract, which caused the contract, which caused the contract, which caused the contract, which caused the contract, which caused the contract, which caused the fundamental breach of contract.The creditor's performance of the interests of the creditors ", so it did not support the lift of the contract and demolition project proposed by the housing owner.

Finally, if the scope of losses compensation in the energy management contract is large, such as the expected profit, the liability for breach of contract to the third party, etc., it may lead to compensation for the project company on related indirect losses, expected returns, pure economic losses, etc.Responsibility has caused the liability for compensation.If there is no relevant agreement in the contract, the project company may need to bear the maintenance costs of water leakage houses and compensate for destruction of equipment damage caused by water leakage.In (2021) Henan 09 Pinsen 2892 cases, the court also recognized that the project company bears the rental losses caused by the factory tenant to the factory owner due to the roof leakage.

5. Conclusion

The controversy described in this article is only part of the typical disputes in the roof distributed photovoltaic project, and the type of dispute in practice is actually more diverse.At present, the number and installation capacity of the roof distributed photovoltaic projects show rapid growth trend, and projects that enter the operating period have also increased year by year. During this period, various problems will be further prominent.Therefore, how to combine the tendency opinion of judicial practice, avoid or reduce project risks as much as possible during the project development and signing stage, and how to make effective pairs when risk occurs.Professional legal personnel in the industry are handled and resolved.

[Note]

[1] For example, Binzhou Central Court (2022) Lu 16 Min No. 1761, Yancheng Middle Court (2021) Su 09 Min No. 7186 and other cases.
[2] Generally, the power account is registered by the roof owner. The company that rented the factory building, that is, the actual power party does not register the power account, that is, the factory building is rented or the tenant is replaced. It usually does not change the power account or meter.
[3] Article 14 of the "Supreme People's Court <Interpretation of Several Issues of Specific Applied Laws of Specific Applied Laws of Testing Contracts in Urban House Leasing" clearly stipulates that "the leased house under the leaser's change within the period of the lease contract.The people's court should be supported if people continue to fulfill the original lease contract. However, the rental house has the following situations or the parties have the agreed.The change; (2) The house had been seized by the people's court according to law before the rental. "
[4] Article 18 of the "Enterprise Bankruptcy Law" stipulates that "After the people's court accepts the bankruptcy application, the manager's contract shall be established before the bankruptcy application is established before the acceptance of the bankruptcy application.. If the manager fails to notify the other party's parties within two months from the date of acceptance of the bankruptcy application, or fails to answer the contract within 30 days from the date of receiving the party's notice, it shall be deemed to be terminated.The parties should perform; however, the other party has the right to request the manager to provide guarantees. If the manager does not provide a guarantee, it is deemed to be the termination of the contract. "
[5] BAPV (Building Attached Photovoltaics) is an additional roof photovoltaic power station. It is a power station form installed the photovoltaic power generation system on the building roof for power generation.
[6] Article 322 of the "Civil Code" stipulates that if there is an agreement due to the agreed, if there is an agreement or the agreement is not clear, if the law does not specify;, According to the utility of fully exerting the objects and the principle of protecting the non -mistakes.Due to the fault of one party or the belonging of the object that causes the other party, the other party shall be damaged, compensation or compensation shall be given.
Article 41 of the Supreme People's Court on the Explanation of the Supreme People's Republic of the People's Republic of China on the Assurance System "stipulates that after the mortgage is established, the mortgage property is attached after the mortgage is established.If a person advocates the effectiveness of mortgage rights and the attachment, the people's court shall support it, but if the value of the mortgage property increases, the validity of the mortgage rights is not as effective as the increased value part.
[7] BIPV (Building Incatured Photovoltaics) is the integration of photovoltaic architecture. It is a power station form that integrates solar power generation equipment into the building.

Lawyer Hao Li Hangzhou Office partner

Business field:Engineering and project development, investment mergers and acquisitions and corporate governance, litigation arbitration

Specialty industry categories:Real estate and infrastructure, energy and natural resources

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