[introduction of the lawyer in this case]
Cao Yuanjun, deputy secretary of the Party committee and executive director of Liaoning Tongfang law firm. Deputy of Shenyang Municipal People's Congress, member of the Party committee of Shenyang lawyers industry, vice president of Shenyang Lawyers Association, etc. He has successively won the honorary titles of the first top ten young lawyers in Shenyang, the first excellent young lawyers in Liaoning Province, the excellent lawyers in Liaoning Province, the model of honest lawyers in Shenyang, the excellent party affairs worker in the judicial system of Shenyang, the excellent Party member lawyer in the lawyer industry of Shenyang, the excellent Party member lawyer in the lawyer industry of Liaoning Province, and the excellent Party member lawyer in the national lawyer industry.
[referee points]
Judging from the agreed content itself, the applicable conditions have not been fulfilled. Article 26 of the contract stipulates that "Party B shall pay 85% of the total work quantity within one week after completing all the work quantities agreed in the contract, and Party B shall report the final accounts to Party A and complete the audit work within three months (overdue as approval)". The application of visible terms shall meet the following requirements: 1. After Party B completes all the quantities agreed in the contract, that is, after the project is completed, the appellee can submit relevant documents to Nanfeng company; 2. The documents submitted by the appellee to Nanfeng company shall be final settlement documents, not settlement documents. In this case, the appellee's company unilaterally stopped the construction without authorization, and did not complete all the quantities agreed in the contract when submitting the documents, and the documents submitted were not final settlement documents. Therefore, if the conditions are not met, the agreement cannot be applied. According to Article 20 of the interpretation of the Supreme People's Court on the application of laws to the trial of construction contract disputes, this agreement is not applicable.
According to the contract of Diaobingshan sandalwood five star hotel project, the provisional price agreed by both parties in the contract is 28.73 million yuan, while the settlement price of the respondent's company is 61.21 million yuan, which exceeds the provisional price of the contract by 32.48 million yuan. Even if there are changes and additions to the project, it is impossible to exceed the provisional price by more than twice. The cost appraisal organization conducted cost appraisal on the completed quantities. According to this appraisal conclusion, the total cost of the project is only 44.98 million yuan, which is 16.23 million yuan different from the quotation of the company. Among the 16 million, there are not only false reports, but also a large number of false and deceptive reports.
[basic case]
Guangda Construction Group Co., Ltd. (hereinafter referred to as "Guangda company") and Liaoning Nanfeng Real Estate Co., Ltd. (hereinafter referred to as "Nanfeng real estate") have a dispute over the construction project contract arrears. The majority of companies advocate that they should actively perform their obligations after signing the contract with Nanfeng real estate as the construction unit, but Nanfeng still owes 223562,85 yuan for the project. In the case that Nanfeng real estate lost the case in the first trial (not my agent) and paid 208259,70.65 yuan to the company's project, I, as the agent in the second trial, filed an appeal on behalf of the company, pointing out that the company's false quotation (the contract provisional price was 28.73 million yuan, while the company's settlement quotation was 61.21 million yuan, which exceeded the contract provisional price by 32.48 million yuan), and a large number of repeated use of the visa sheet to cheat the project quantity, false sets of items The failure of payment terms and the fact and legal problems during the trial of the court of first instance. The subject matter of the case is large and the case is complex. Through investigation and evidence collection, the lawyer analyzes the case, clarifies the legal relationship, and summarizes the focus of the dispute. In order to protect the legitimate rights and interests of the principal, the lawyer promotes it layer by layer, fully applies the fairness principle of the contract law, obtains the support of the court of second instance according to law, and decides to cancel the original judgment and remand it for retrial.
[judgment result]
1、 Revoke the civil judgment (2014) tmcz No. 00020 of Tieling intermediate people's court;
2、 And sent back to Tieling intermediate people's court for retrial.
[reasons for adjudication]
1、 If the conditions to be met are not fulfilled, the application of relevant agreements shall be excluded.
2、 According to the principle of fairness, the project price claimed by the majority of companies should not be used as the basis for settlement.
[relevant provisions]
Article 20 of the interpretation of the Supreme People's Court on the application of laws to the trial of construction contract disputes
Article 29 of the interpretation of the Supreme People's Court on Several Issues concerning the application of the contract law of the people's Republic of China (II)
Guiding opinions of the Supreme People's Court on Several Issues concerning the trial of civil and commercial contract disputes under the current situation
Article 114 of the contract law of the people's Republic of China
Article 30 of opinions on Several Issues concerning the trial of disputes over construction contract
[lawyer's opinion]
After receiving the case, the lawyer analyzed the case, investigated and collected evidence, comprehensively considered and analyzed the advantages and disadvantages, and concluded that the most controversial focus of the case is whether the project price unilaterally claimed by the company can be used as the basis for settlement. The lawyer believes that the total amount of project payment payable cannot be determined according to the project price advocated by the majority of companies, but should be determined according to the quantities actually completed by the construction party and by means of project cost appraisal. The specific reasons are as follows:
1、 If the conditions to be met are not fulfilled, the application of relevant agreements shall be excluded.
The majority of companies advocate that the final settlement price of both parties should be based on the settlement document quotation submitted by one party, which is Article 26 of the special terms of the contract for Diaobingshan Honolulu five star hotel project.
（1） Judging from the agreed content itself, the applicable conditions have not been fulfilled. Article 26 of the contract stipulates that "Party B shall pay 85% of the total work quantity within one week after completing all the work quantities agreed in the contract, and Party B shall report the final accounts to Party A and complete the audit work within three months (overdue as approval)". The application of visible terms shall meet the following requirements: 1. After Party B completes all the quantities agreed in the contract, that is, after the project is completed, the appellee can submit relevant documents to Nanfeng company; 2. The documents submitted by the appellee to Nanfeng company shall be final settlement documents, not settlement documents. In this case, the appellee's company unilaterally stopped the construction without authorization, and did not complete all the quantities agreed in the contract when submitting the documents, and the documents submitted were not final settlement documents. Therefore, if the conditions are not met, the agreement cannot be applied.
（2） According to Article 20 of the interpretation of the Supreme People's Court on the application of laws to the trial of disputes over construction contracts (hereinafter referred to as the judicial interpretation), this agreement is not applicable. In the trial practice in the field of construction engineering, before the promulgation of the judicial interpretation, even if there is an implicit recognition agreement in the contract that the overdue settlement is deemed as the acceptance of the quotation in the completion settlement document, the court does not handle it according to the agreement, and generally still entrusts the price review. The reason is that the construction contract dispute cases of construction projects are different from ordinary civil cases. Generally, the amount of the subject matter involved is very large. At the same time, considering that the quotation of the settlement statement submitted by the construction unit is usually too large, the review and non review of the price involve the huge interests of both parties, and the dynamic difference is several hundred to tens of millions. If the simple and mechanical application of the implied agreement terms and the acceptance of the settlement quotation will be obviously unfair, This has caused huge economic losses to the construction party. Based on the above considerations, even after the promulgation of the judicial interpretation, the court will apply the judicial interpretation in strict accordance with the provisions of the interpretation and conditionally apply the agreements between the parties. Only when the conditions specified in the interpretation are fully met will the application be considered. Article 20 of the judicial interpretation stipulates that "if the parties agree that the employer does not reply within the agreed time limit after receiving the completion settlement documents, it shall be deemed to have approved the completion settlement documents, and the agreement shall be followed. If the contractor requests to settle the project price according to the completion settlement documents, it shall be supported." The legislative intent of this judicial interpretation is to punish the employer for maliciously delaying the settlement after the completion of the project, delaying the payment to the construction party, and infringing the interests of the construction party. Therefore, the time for submission of documents by the construction party is strictly limited to the completion of the project, and the documents received by the employer are limited to "completion settlement documents". According to the spirit of the foregoing interpretation and in combination with this case, the project was not completed when the company of the respondent submitted the documents, and the documents submitted were naturally not completion settlement documents, and could not be applied to Article 26 of the special terms of the contract for the project of Diaobingshan Honolulu Bay five star hotel according to the judicial interpretation.
2、 According to the principle of fairness, the project price claimed by the majority of companies should not be used as the basis for settlement.
The principle of fairness is the basic principle of civil law, which should be applied preferentially in order to ensure that fairness and justice can be reflected in every judicial case. This principle requires that the judicial organs should be fair and reasonable while trying civil cases in accordance with the law. In this case, the court of first instance should not support the claim of the majority of companies that the final settlement price should be the trial price, otherwise it will inevitably lead to extremely serious imbalance of interests, and fairness and reasonableness will inevitably become empty talk. The reasons are as follows.
（1） A false offer of tens of millions of yuan. According to the contract of Diaobingshan sandalwood five star hotel project, the provisional price agreed by both parties in the contract is 28.73 million yuan, while the settlement price of the respondent's company is 61.21 million yuan, which exceeds the provisional price of the contract by 32.48 million yuan. Even if there are changes and additions to the project, it is impossible to exceed the provisional price by more than twice. In order to explain to your court how much moisture is in the settlement documents submitted by the majority of companies, Nanfeng company has entrusted a professional cost appraisal institution to conduct cost appraisal on the completed quantities after the first trial, and submitted the appraisal conclusion to your court. According to this appraisal conclusion, the total cost of the project is only 44.98 million yuan, which is 16.23 million yuan different from the quotation of the company. Among the 16 million yuan, there are not only false reports, but also a large number of false and deceptive reports, that is, the project parts that were not constructed and completed by the majority of companies were included in the settlement documents. The false report, false report and deception involve many aspects. First, the part that is not under the construction of the company, that is, the part that is not under the construction of the company, is falsely reported or deceptively reported as its construction; The second is to cheat the quantity of work, that is, the part that is not actually completed but is quoted at the price of 100% completion; Third, repeated quotation, i.e. repeated calculation of project funds; Fourth, unreasonable charging, i.e. not charging according to the contract and normal charging standards; Fifth, false items; Sixth, false reporting of supporting fees. Of course, there are other situations involved, and I will not list them here.
The 16 million yuan was not obtained by the majority of companies through hard work and day-to-day construction, brick by brick. Instead, it was obtained by a random stroke of the pen, no effort, or even deception. There are few construction companies with such courage and courage. Compared with Nanfeng company, one party is honest and trustworthy, and appropriates the project funds in full and on time according to the contract, and there is no default; However, the other party submitted a settlement report by arbitrarily stopping construction, taking advantage of the failure of negotiation between the two parties on the project closure work and the gap near the Spring Festival, and falsely reported the amount of project funds as high as 16 million yuan in the settlement report, in a vain attempt to obtain huge unexpected benefits through litigation. Nanfeng company's honesty and trustworthiness eventually led to the current lawsuits. It is unfortunate for Nanfeng company to meet such a partner. However, fortunately, there is the principle of fairness in the civil law, and the false quotation of settlement quotation is as high as tens of millions, which makes the extremely obvious unfairness caused by the application of this clause inevitable for any ordinary people. Better still, the court responsible for the second instance trial of this case is your court. We believe that your court, as a provincial court, will not be as mechanical as the court of first instance. It will be able to balance the interests of all parties, be fair and reasonable in this case, correct the errors in the first instance judgment, and let us experience fairness and justice in this case.
（2） The necessity of applying the principle of fairness in this case.
1. The principle of fairness can be used as the legal basis for not applying the agreement between the parties when it is obviously unfair.
Article 29 of the interpretation of the Supreme People's Court on Several Issues concerning the application of the contract law of the people's Republic of China (II) stipulates that: "If the parties claim that the agreed liquidated damages are too high and request an appropriate reduction, the people's court shall, on the basis of actual losses, take into account the performance of the contract, the degree of fault of the parties, the expected interests and other comprehensive factors, and make a judgment based on the principles of fairness and good faith."
Meanwhile, In the guiding opinions of the Supreme People's Court on Several Issues concerning the trial of civil and commercial contract disputes under the current situation: "II. Reasonably adjust the amount of liquidated damages in accordance with the law and fairly solve the problem of liability for breach of contract 6. Under the circumstances that the current business conditions of enterprises are generally difficult, if the amount of liquidated damages is excessively higher than the losses caused by breach of contract, it shall, in accordance with the principles of good faith and fairness as stipulated in the contract law, adhere to the nature of liquidated damages that are mainly compensatory and supplemented by punitive nature, reasonably adjust the discretion range, and effectively prevent the complete loss on the ground of autonomy of will Allow the parties to agree on excessive liquidated damages. 7. When the people's court adjusts the excessive liquidated damages according to paragraph 2 of Article 114 of the contract law, it shall, according to the specific circumstances of the case, take the losses caused by the breach of contract as the benchmark, comprehensively weigh the performance of the contract, the fault of the parties, the expected interests, the strength of the contracting status of the parties, whether the standard contract or terms are applicable, and comprehensively weigh them according to the principles of fairness and good faith, Avoid the "one size fits all" approach such as simply adopting a fixed ratio, and prevent the substantive unfairness that may be caused by mechanical justice. "
It can be seen that the application of the agreement between the parties may lead to a serious imbalance in the interests of the parties, that is, when it is obvious that there is a significant disadvantage to one party and the other party has obviously obtained interests beyond the scope permitted by law, the court shall not apply the agreement based on the principle of fairness.
2. The principle of fairness should be applied preferentially in the trial practice of construction contract dispute cases.
Generally, the subject matter of construction contract dispute cases is huge. In many cases, the result of the case is related to the survival of the parties. In 2004, the interpretation on the applicable legal issues in the trial of disputes over construction contracts was issued. In the interpretation and application of the interpretation on the applicable legal issues in the trial of disputes over construction contracts by the first civil court of the Supreme People's court, President Feng Xiaoguang pointed out that the formulation of most provisions in the judicial interpretation was based on the principle of fairness, that is, disputes should be handled fairly, Apply and judge the case from the perspective of balancing the interests of all parties.
Some provincial courts have also taken the principle of fairness as the legal basis for adjudication in their trial practice. For example, the Shandong Higher People's court, Article 30 of the opinions on Several Issues concerning the trial of disputes over construction contract stipulates that: "In the trial of disputes over arrears of construction projects, generally, the settlement shall be based on the project cost and settlement method agreed by the parties in the contract; however, if the agreed price is obviously higher or lower than 30% of the market price, and the labor remuneration obtained is obviously higher or lower than 30% of the labor standard of the same kind, resulting in serious imbalance of interests of both parties, the agreed price shall be changed in a fair and reasonable manner." Thus, when there is a conflict of interest between the parties, the people's court should use the principle of fairness to comprehensively measure, and timely not apply or make appropriate changes to the agreement of the parties.
3. It is necessary that the principle of fairness should be applied in this case.
Here, I must introduce the current situation of Nanfeng company. As we all know, since last year, the real estate market has continued to be depressed, and most development enterprises are extremely short of funds, including Nanfeng company. The Diaobingshan "sandalwood bay" hotel and residential community project developed and constructed by Nanfeng company is large in scale and requires huge capital flow. It is more necessary to carefully plan the capital source, investment amount and investment time of each capital to ensure the smooth construction of the project. If any large amount of capital is broken, a series of serious chain reactions will be triggered. For example, The project funds that could have been paid to the Construction Party of other parts of the project cannot be paid, and the construction party cannot pay the wages to the migrant workers. The wages of a large number of migrant workers are in arrears for a long time, and the collective petition event is bound to be caused
Cao Yuanjun, deputy secretary of the Party committee and executive director of Liaoning Tongfang law firm. Deputy of Shenyang Municipal People's Congress, member of the Party committee of Shenyang lawyers industry, vice president of Shenyang Lawyers Association, etc. He has successively won the honorary titles of the first top ten young lawyers in Shenyang, the first excellent young lawyers in Liaoning Province, the excellent lawyers in Liaoning Province, the model of honest lawyers in Shenyang, the excellent party affairs worker in the judicial system of Shenyang, the excellent Party member lawyer in the lawyer industry of Shenyang, the excellent Party member lawyer in the lawyer industry of Liaoning Province, and the excellent Party member lawyer in the national lawyer industry.
[referee points]
Judging from the agreed content itself, the applicable conditions have not been fulfilled. Article 26 of the contract stipulates that "Party B shall pay 85% of the total work quantity within one week after completing all the work quantities agreed in the contract, and Party B shall report the final accounts to Party A and complete the audit work within three months (overdue as approval)". The application of visible terms shall meet the following requirements: 1. After Party B completes all the quantities agreed in the contract, that is, after the project is completed, the appellee can submit relevant documents to Nanfeng company; 2. The documents submitted by the appellee to Nanfeng company shall be final settlement documents, not settlement documents. In this case, the appellee's company unilaterally stopped the construction without authorization, and did not complete all the quantities agreed in the contract when submitting the documents, and the documents submitted were not final settlement documents. Therefore, if the conditions are not met, the agreement cannot be applied. According to Article 20 of the interpretation of the Supreme People's Court on the application of laws to the trial of construction contract disputes, this agreement is not applicable.
According to the contract of Diaobingshan sandalwood five star hotel project, the provisional price agreed by both parties in the contract is 28.73 million yuan, while the settlement price of the respondent's company is 61.21 million yuan, which exceeds the provisional price of the contract by 32.48 million yuan. Even if there are changes and additions to the project, it is impossible to exceed the provisional price by more than twice. The cost appraisal organization conducted cost appraisal on the completed quantities. According to this appraisal conclusion, the total cost of the project is only 44.98 million yuan, which is 16.23 million yuan different from the quotation of the company. Among the 16 million, there are not only false reports, but also a large number of false and deceptive reports.
[basic case]
Guangda Construction Group Co., Ltd. (hereinafter referred to as "Guangda company") and Liaoning Nanfeng Real Estate Co., Ltd. (hereinafter referred to as "Nanfeng real estate") have a dispute over the construction project contract arrears. The majority of companies advocate that they should actively perform their obligations after signing the contract with Nanfeng real estate as the construction unit, but Nanfeng still owes 223562,85 yuan for the project. In the case that Nanfeng real estate lost the case in the first trial (not my agent) and paid 208259,70.65 yuan to the company's project, I, as the agent in the second trial, filed an appeal on behalf of the company, pointing out that the company's false quotation (the contract provisional price was 28.73 million yuan, while the company's settlement quotation was 61.21 million yuan, which exceeded the contract provisional price by 32.48 million yuan), and a large number of repeated use of the visa sheet to cheat the project quantity, false sets of items The failure of payment terms and the fact and legal problems during the trial of the court of first instance. The subject matter of the case is large and the case is complex. Through investigation and evidence collection, the lawyer analyzes the case, clarifies the legal relationship, and summarizes the focus of the dispute. In order to protect the legitimate rights and interests of the principal, the lawyer promotes it layer by layer, fully applies the fairness principle of the contract law, obtains the support of the court of second instance according to law, and decides to cancel the original judgment and remand it for retrial.
[judgment result]
1、 Revoke the civil judgment (2014) tmcz No. 00020 of Tieling intermediate people's court;
2、 And sent back to Tieling intermediate people's court for retrial.
[reasons for adjudication]
1、 If the conditions to be met are not fulfilled, the application of relevant agreements shall be excluded.
2、 According to the principle of fairness, the project price claimed by the majority of companies should not be used as the basis for settlement.
[relevant provisions]
Article 20 of the interpretation of the Supreme People's Court on the application of laws to the trial of construction contract disputes
Article 29 of the interpretation of the Supreme People's Court on Several Issues concerning the application of the contract law of the people's Republic of China (II)
Guiding opinions of the Supreme People's Court on Several Issues concerning the trial of civil and commercial contract disputes under the current situation
Article 114 of the contract law of the people's Republic of China
Article 30 of opinions on Several Issues concerning the trial of disputes over construction contract
[lawyer's opinion]
After receiving the case, the lawyer analyzed the case, investigated and collected evidence, comprehensively considered and analyzed the advantages and disadvantages, and concluded that the most controversial focus of the case is whether the project price unilaterally claimed by the company can be used as the basis for settlement. The lawyer believes that the total amount of project payment payable cannot be determined according to the project price advocated by the majority of companies, but should be determined according to the quantities actually completed by the construction party and by means of project cost appraisal. The specific reasons are as follows:
1、 If the conditions to be met are not fulfilled, the application of relevant agreements shall be excluded.
The majority of companies advocate that the final settlement price of both parties should be based on the settlement document quotation submitted by one party, which is Article 26 of the special terms of the contract for Diaobingshan Honolulu five star hotel project.
（1） Judging from the agreed content itself, the applicable conditions have not been fulfilled. Article 26 of the contract stipulates that "Party B shall pay 85% of the total work quantity within one week after completing all the work quantities agreed in the contract, and Party B shall report the final accounts to Party A and complete the audit work within three months (overdue as approval)". The application of visible terms shall meet the following requirements: 1. After Party B completes all the quantities agreed in the contract, that is, after the project is completed, the appellee can submit relevant documents to Nanfeng company; 2. The documents submitted by the appellee to Nanfeng company shall be final settlement documents, not settlement documents. In this case, the appellee's company unilaterally stopped the construction without authorization, and did not complete all the quantities agreed in the contract when submitting the documents, and the documents submitted were not final settlement documents. Therefore, if the conditions are not met, the agreement cannot be applied.
（2） According to Article 20 of the interpretation of the Supreme People's Court on the application of laws to the trial of disputes over construction contracts (hereinafter referred to as the judicial interpretation), this agreement is not applicable. In the trial practice in the field of construction engineering, before the promulgation of the judicial interpretation, even if there is an implicit recognition agreement in the contract that the overdue settlement is deemed as the acceptance of the quotation in the completion settlement document, the court does not handle it according to the agreement, and generally still entrusts the price review. The reason is that the construction contract dispute cases of construction projects are different from ordinary civil cases. Generally, the amount of the subject matter involved is very large. At the same time, considering that the quotation of the settlement statement submitted by the construction unit is usually too large, the review and non review of the price involve the huge interests of both parties, and the dynamic difference is several hundred to tens of millions. If the simple and mechanical application of the implied agreement terms and the acceptance of the settlement quotation will be obviously unfair, This has caused huge economic losses to the construction party. Based on the above considerations, even after the promulgation of the judicial interpretation, the court will apply the judicial interpretation in strict accordance with the provisions of the interpretation and conditionally apply the agreements between the parties. Only when the conditions specified in the interpretation are fully met will the application be considered. Article 20 of the judicial interpretation stipulates that "if the parties agree that the employer does not reply within the agreed time limit after receiving the completion settlement documents, it shall be deemed to have approved the completion settlement documents, and the agreement shall be followed. If the contractor requests to settle the project price according to the completion settlement documents, it shall be supported." The legislative intent of this judicial interpretation is to punish the employer for maliciously delaying the settlement after the completion of the project, delaying the payment to the construction party, and infringing the interests of the construction party. Therefore, the time for submission of documents by the construction party is strictly limited to the completion of the project, and the documents received by the employer are limited to "completion settlement documents". According to the spirit of the foregoing interpretation and in combination with this case, the project was not completed when the company of the respondent submitted the documents, and the documents submitted were naturally not completion settlement documents, and could not be applied to Article 26 of the special terms of the contract for the project of Diaobingshan Honolulu Bay five star hotel according to the judicial interpretation.
2、 According to the principle of fairness, the project price claimed by the majority of companies should not be used as the basis for settlement.
The principle of fairness is the basic principle of civil law, which should be applied preferentially in order to ensure that fairness and justice can be reflected in every judicial case. This principle requires that the judicial organs should be fair and reasonable while trying civil cases in accordance with the law. In this case, the court of first instance should not support the claim of the majority of companies that the final settlement price should be the trial price, otherwise it will inevitably lead to extremely serious imbalance of interests, and fairness and reasonableness will inevitably become empty talk. The reasons are as follows.
（1） A false offer of tens of millions of yuan. According to the contract of Diaobingshan sandalwood five star hotel project, the provisional price agreed by both parties in the contract is 28.73 million yuan, while the settlement price of the respondent's company is 61.21 million yuan, which exceeds the provisional price of the contract by 32.48 million yuan. Even if there are changes and additions to the project, it is impossible to exceed the provisional price by more than twice. In order to explain to your court how much moisture is in the settlement documents submitted by the majority of companies, Nanfeng company has entrusted a professional cost appraisal institution to conduct cost appraisal on the completed quantities after the first trial, and submitted the appraisal conclusion to your court. According to this appraisal conclusion, the total cost of the project is only 44.98 million yuan, which is 16.23 million yuan different from the quotation of the company. Among the 16 million yuan, there are not only false reports, but also a large number of false and deceptive reports, that is, the project parts that were not constructed and completed by the majority of companies were included in the settlement documents. The false report, false report and deception involve many aspects. First, the part that is not under the construction of the company, that is, the part that is not under the construction of the company, is falsely reported or deceptively reported as its construction; The second is to cheat the quantity of work, that is, the part that is not actually completed but is quoted at the price of 100% completion; Third, repeated quotation, i.e. repeated calculation of project funds; Fourth, unreasonable charging, i.e. not charging according to the contract and normal charging standards; Fifth, false items; Sixth, false reporting of supporting fees. Of course, there are other situations involved, and I will not list them here.
The 16 million yuan was not obtained by the majority of companies through hard work and day-to-day construction, brick by brick. Instead, it was obtained by a random stroke of the pen, no effort, or even deception. There are few construction companies with such courage and courage. Compared with Nanfeng company, one party is honest and trustworthy, and appropriates the project funds in full and on time according to the contract, and there is no default; However, the other party submitted a settlement report by arbitrarily stopping construction, taking advantage of the failure of negotiation between the two parties on the project closure work and the gap near the Spring Festival, and falsely reported the amount of project funds as high as 16 million yuan in the settlement report, in a vain attempt to obtain huge unexpected benefits through litigation. Nanfeng company's honesty and trustworthiness eventually led to the current lawsuits. It is unfortunate for Nanfeng company to meet such a partner. However, fortunately, there is the principle of fairness in the civil law, and the false quotation of settlement quotation is as high as tens of millions, which makes the extremely obvious unfairness caused by the application of this clause inevitable for any ordinary people. Better still, the court responsible for the second instance trial of this case is your court. We believe that your court, as a provincial court, will not be as mechanical as the court of first instance. It will be able to balance the interests of all parties, be fair and reasonable in this case, correct the errors in the first instance judgment, and let us experience fairness and justice in this case.
（2） The necessity of applying the principle of fairness in this case.
1. The principle of fairness can be used as the legal basis for not applying the agreement between the parties when it is obviously unfair.
Article 29 of the interpretation of the Supreme People's Court on Several Issues concerning the application of the contract law of the people's Republic of China (II) stipulates that: "If the parties claim that the agreed liquidated damages are too high and request an appropriate reduction, the people's court shall, on the basis of actual losses, take into account the performance of the contract, the degree of fault of the parties, the expected interests and other comprehensive factors, and make a judgment based on the principles of fairness and good faith."
Meanwhile, In the guiding opinions of the Supreme People's Court on Several Issues concerning the trial of civil and commercial contract disputes under the current situation: "II. Reasonably adjust the amount of liquidated damages in accordance with the law and fairly solve the problem of liability for breach of contract 6. Under the circumstances that the current business conditions of enterprises are generally difficult, if the amount of liquidated damages is excessively higher than the losses caused by breach of contract, it shall, in accordance with the principles of good faith and fairness as stipulated in the contract law, adhere to the nature of liquidated damages that are mainly compensatory and supplemented by punitive nature, reasonably adjust the discretion range, and effectively prevent the complete loss on the ground of autonomy of will Allow the parties to agree on excessive liquidated damages. 7. When the people's court adjusts the excessive liquidated damages according to paragraph 2 of Article 114 of the contract law, it shall, according to the specific circumstances of the case, take the losses caused by the breach of contract as the benchmark, comprehensively weigh the performance of the contract, the fault of the parties, the expected interests, the strength of the contracting status of the parties, whether the standard contract or terms are applicable, and comprehensively weigh them according to the principles of fairness and good faith, Avoid the "one size fits all" approach such as simply adopting a fixed ratio, and prevent the substantive unfairness that may be caused by mechanical justice. "
It can be seen that the application of the agreement between the parties may lead to a serious imbalance in the interests of the parties, that is, when it is obvious that there is a significant disadvantage to one party and the other party has obviously obtained interests beyond the scope permitted by law, the court shall not apply the agreement based on the principle of fairness.
2. The principle of fairness should be applied preferentially in the trial practice of construction contract dispute cases.
Generally, the subject matter of construction contract dispute cases is huge. In many cases, the result of the case is related to the survival of the parties. In 2004, the interpretation on the applicable legal issues in the trial of disputes over construction contracts was issued. In the interpretation and application of the interpretation on the applicable legal issues in the trial of disputes over construction contracts by the first civil court of the Supreme People's court, President Feng Xiaoguang pointed out that the formulation of most provisions in the judicial interpretation was based on the principle of fairness, that is, disputes should be handled fairly, Apply and judge the case from the perspective of balancing the interests of all parties.
Some provincial courts have also taken the principle of fairness as the legal basis for adjudication in their trial practice. For example, the Shandong Higher People's court, Article 30 of the opinions on Several Issues concerning the trial of disputes over construction contract stipulates that: "In the trial of disputes over arrears of construction projects, generally, the settlement shall be based on the project cost and settlement method agreed by the parties in the contract; however, if the agreed price is obviously higher or lower than 30% of the market price, and the labor remuneration obtained is obviously higher or lower than 30% of the labor standard of the same kind, resulting in serious imbalance of interests of both parties, the agreed price shall be changed in a fair and reasonable manner." Thus, when there is a conflict of interest between the parties, the people's court should use the principle of fairness to comprehensively measure, and timely not apply or make appropriate changes to the agreement of the parties.
3. It is necessary that the principle of fairness should be applied in this case.
Here, I must introduce the current situation of Nanfeng company. As we all know, since last year, the real estate market has continued to be depressed, and most development enterprises are extremely short of funds, including Nanfeng company. The Diaobingshan "sandalwood bay" hotel and residential community project developed and constructed by Nanfeng company is large in scale and requires huge capital flow. It is more necessary to carefully plan the capital source, investment amount and investment time of each capital to ensure the smooth construction of the project. If any large amount of capital is broken, a series of serious chain reactions will be triggered. For example, The project funds that could have been paid to the Construction Party of other parts of the project cannot be paid, and the construction party cannot pay the wages to the migrant workers. The wages of a large number of migrant workers are in arrears for a long time, and the collective petition event is bound to be caused
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