[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]
The construction contract of this project is directly formed between the employer Dandong company and the actual constructor Shi. A company in Shenyang is only a construction enterprise that lends its qualification and name to assist both parties to achieve the purpose of the contract, and has not participated in the negotiation and actual performance of the contract. Both a company in Dandong and a certain Shi are aware of this. Because natural persons use their qualifications to contract construction projects in violation of the mandatory provisions of laws and administrative regulations, the relevant construction contracts and agreements formed between a company in Dandong, a company in Shi and a company in Shenyang are invalid contracts. According to the provisions of the relevant judicial interpretation of the Supreme Court, Shi, as the actual constructor of the disputed project in this case, is still entitled to claim the project price from the employer and a company in Dandong, the contract counterpart, according to the settlement standard agreed in the contract, for the completed quantities under the premise that the construction contract is invalid. However, its claim that a company in Shenyang, a qualified lender, should bear the payment of the project funds is unfounded in law.
[basic case]
In June 2012, a company in Dandong invited bids for the underground civil air defense project of Dandong Xin'an underground shopping mall (hereinafter referred to as Xin'an project), and a company in Shenyang won the bid.
On July 18, 2012, a company in Shenyang signed a construction project contract agreement with Mr. Shi, which agreed that a company in Shenyang agreed to construct the Xin'an project entirely by Mr. Shi.
On August 25, a company in Dandong signed a construction contract with a company in Shenyang to contract out the Xin'an project to a company in Shenyang. The supplementary agreement stipulates that the construction area is about 15000 ㎡, the contract price is tentatively agreed to be 75 million yuan, and the commencement date is tentatively determined to be September 10, 2012. The commencement date notified by Party A in writing shall prevail. The total construction period is expected to be 365 days. The project cost shall be settled according to the actual quantities of the project.
On October 11, in order to ensure the smooth progress of Xin'an project, a company in Dandong submitted a "cost analysis sheet of Xin'an underground civil air defense project" to Shi. It proposed that the project cost of Xin'an project should be calculated by the comprehensive unit price of 3650 yuan per square meter, and noted the relevant requirements and pending issues of Xin'an project. Shi raised an objection, Submit to a company in Dandong one copy of the "cost analysis table of underground civil air defense project of Xin'an pedestrian street". Based on the analysis of the project names listed in the "cost analysis table" of a company in Dandong, put forward the comprehensive unit price of the main project cost of 4050 yuan per square meter, and explain the relevant situation. After many negotiations, both parties signed a supplementary agreement on January 30, 2013 (hereinafter referred to as supplementary agreement II) Supplementary agreement II further stipulates the contract scope, project duration, contract method, project payment settlement method and other relevant contents of Xin'an project in supplementary agreement I.
During the construction of Xin'an project, Shi entered the construction site on June 23, 2012 according to the requirements of a company in Dandong to carry out preliminary engineering mapping and construction preparation and wait for commencement. However, by the end of August, the project had not started. On September 4, a company in Dandong held a project briefing meeting to inform that the original continuous construction scheme of Xin'an project could not be implemented, and the construction of the rest project needed to be carried out in sections. At the same time, a company in Dandong agreed to pay a compensation of 500000 yuan for the delay in work of Mr. Shi who entered the site in the previous year.
On March 8, 2014, the foundation and main body of the Xin'an project constructed by Shi was completed and the application for inspection and acceptance was made. As of May 17, after comprehensive inspection and acceptance of the Xin'an project by all parties involved, it was found that it met the project quality inspection and evaluation standards and was accepted as qualified. After the Xin'an project passed the inspection and acceptance, a company in Dandong actually used the project for subsequent decoration and sales. Shi believed that a company in Dandong and a company in Shenyang had not paid the project funds, which infringed on their legitimate rights and interests. Shi filed a lawsuit in this case. After trial, the court of first instance held that a company in Shenyang should not bear the liability for compensation.
Both Shi and Dandong Company disagreed with the judgment of first instance and appealed to the higher people's Court of Liaoning Province. The court of second instance held that a company in Shenyang was only a lender of qualification and not the counterpart of the contract, and Shi and Dandong company knew the situation well. Therefore, the appeal request of a company in Dandong and a company in Shenyang to pay the project funds was rejected.
[judgment result]
A company in Shenyang does not assume any responsibility.
[reasons for adjudication]
This case belongs to the construction contract dispute of the construction project, which is directly formed between the employer Dandong company and the actual constructor Shi. A company in Shenyang is only a construction enterprise that lends its qualification and name to assist both parties to achieve the purpose of the contract, and has not participated in the negotiation and actual performance of the contract. Both a company in Dandong and a certain Shi are aware of this. Because natural persons use their qualifications to contract construction projects in violation of the mandatory provisions of laws and administrative regulations, the relevant construction contracts and agreements formed between a company in Dandong, a company in Shi and a company in Shenyang are invalid contracts. According to the provisions of the relevant judicial interpretation of the Supreme Court, Shi, as the actual constructor of the disputed project in this case, is still entitled to claim the project price from the employer and a company in Dandong, the contract counterpart, according to the settlement standard agreed in the contract, for the completed quantities under the premise that the construction contract is invalid. However, its claim that a company in Shenyang, a qualified lender, should bear the project payment is not supported by the law.
To sum up, the court of second instance held that the appeal of Shi and a company in Dandong requesting a company in Shenyang to bear the liability for compensation was not tenable. Therefore, a company in Shenyang was ordered not to bear any responsibility according to law.
[relevant provisions]
Interpretation of the Supreme People's Court on the application of laws to the trial of construction contract disputes
[lawyer's opinion]
We believe that the relationship between a company in Shenyang and Shi is neither subcontracting, subcontracting nor internal contracting, and a company in Shenyang should not bear the responsibility for payment of project funds. The specific reasons are as follows:
1、 The project involved in the lawsuit was contracted first by the actual constructor, and the construction was carried out later in the name of a company in Shenyang.
For the letter of acceptance submitted by Shi. The notice shows that the "bidding method" is "invitation to bid", "the construction unit" is "a company in Dandong", "the winning unit" is "Jiangsu Jinling Construction Engineering Group", the winning unit "project manager" is "Shi", the project name is "underground commercial street of Xin'an pedestrian street in Yuanbao District, Dandong City (litigation related project)", and the date of the letter of acceptance is "June 19, 2012". It can be seen from the above that as early as June 19, 2012, a company in Dandong conducted an independent bidding, and the so-called "project manager" of the winning unit at that time was Shi. Moreover, the bidding method is invitation to bid. From a practical point of view, a company in Dandong, the bidding unit, has the right to decide on the winning bidder. Therefore, it can be judged that a company in Dandong decided from the very beginning to assign the project involved in the lawsuit to the actual construction person Shi, It was only later that Shi was appointed to carry out the construction in the name of a company in Shenyang (Note: the bidding documents submitted by Shi to your institute were submitted by a company in Dandong who entrusted the bidding agency to make up for them afterwards, and the relevant bidding and tendering documents were first seen by a company in Dandong when the parties exchanged evidence after the lawsuit. And there were obvious traces of forgery in the bidding documents.)
Therefore, when a company in Dandong, as the construction unit, again invited bids for the project involved in the lawsuit, although the nominal bid winner was changed, it was very obvious that Shi was the actual constructor designated by a company in Dandong, and that a company in Dandong had already known the real identity of Shi and the later substantive relationship between him and a company in Shenyang. In fact, the project was actually contracted by Shi first, Bidding, tendering and construction in the name of a company in Shenyang.
2、 The relationship between a company in Shenyang and Shi is neither subcontracting nor internal contracting.
The construction project contracting agreement signed by a company in Shenyang and Shi has made a detailed agreement on Shi's construction in the name of a company in Shenyang. It is agreed in Item 3 of Article 1: "the project price is tentatively RMB 75 million, and the final amount shall be subject to the actual settlement between Party B (SHI) and the construction unit (Dandong company)"; Article 5: "1. Party B (Mr. Shi) and Party A (a company in Shenyang) 2. Party A shall provide Party B with the materials required for undertaking the Dandong project at the time required by Party B, including but not limited to the relevant certificates of Party A's business license and qualification certificate, and the relevant materials required for project construction application, and ensure the authenticity and validity of the above documents and materials. Party A shall timely assist Party B in handling the project bidding, signing the agreement and handling the formalities required for the project construction, and the expenses shall be borne by Party B. "; Article 9: "Party B (SHI) of this agreement is the actual contractor of Dandong project..." it can be seen from the above contents that Shi is not an employee of a company in Shenyang. For the project involved in the lawsuit, Shi is only borrowing the qualification of a company in Shenyang to carry out the construction in the name of a company in Shenyang. During the construction period, he is responsible for the investment, purchase and lease, self management, independent accounting and self financing. A company in Shenyang is only a nominal construction party, and does not actually participate in the early contracting and construction of the project, nor does it enjoy construction interests for the project involved in the lawsuit. Therefore, the relationship between a company in Shenyang and Shi is neither subcontracting, subcontracting nor internal contracting. A company in Shenyang should not be the subject of payment of project funds and should not bear the payment obligation. We request your court to reject the lawsuit request of Shi against a company in Shenyang.
3、 On the investigation of criminal responsibility.
The bidding documents (including but not limited to the letter of bid, identity certificate of legal representative, power of attorney, total bid price document, etc.) submitted by Mr. Shi during the court hearing of this case are not stamped by a company in Shenyang, and the company in Shenyang is not aware of this. The above documents are suspected of being forged by others and affixed with the seal of a company in Shenyang. Therefore, a company in Shenyang reserves the right to investigate the criminal responsibility of the relevant forged seal subjects at any time.
This case belongs to a typical case of construction contract of construction project. The subject matter involved is large and the case is complex. Generally, in judicial practice, the actual constructor often claims the project funds from the affiliated unit and requires the affiliated unit to bear the responsibility. However, in this case, when Shi, as the actual constructor, claimed the project funds from a company in Shenyang that lent him the qualification, he was not supported by the court. In this case, in order to protect the legitimate rights and interests of a company in Shenyang, the agent, through investigation and evidence collection, analysis of the case, sorting out the legal relationship, and promotion at all levels, found that the construction unit Shi had conducted two bidding for the project involved in the lawsuit, and the "project manager" of the winning unit was the actual constructor of this case. Accordingly, the agent explained to the court of first instance and the court of second instance that although a company in Dandong, the construction unit, once again conducted bidding for the project involved in the lawsuit, and changed the nominally successful bidder, it was very obvious that the actual constructor of the case was Shi. The construction unit has already appointed the actual constructor, and a company in Dandong has already known the real identity of Shi and the actual relationship between Shi and a company in Shenyang. The project is actually contracted by Shi, the actual constructor, and Shi carries out bidding and construction in the name of an affiliated company in Shenyang. The fact that the affiliated company in Shenyang and Shi are neither subcontracting, subcontracting nor internal contracting has obtained the support of the court of first instance and the court of second instance according to law, and finally the legal rights and interests of the affiliated company in Shenyang are protected according to law. The affiliated company in Shenyang does not bear any responsibility. This case has a certain forward-looking and guiding significance for the legal application of project price in the field of construction projects.
This case covers several substantive and procedural disputes in the field of construction engineering. In judicial practice, the actual constructor often requires the affiliated unit to bear joint and several liabilities when claiming the project funds from the employer. If the affiliated unit does not leave necessary evidence in the actual operation, it will often suffer heavy losses due to small losses. Therefore, in order to prevent potential risks, we suggest that the affiliated unit try its best to reduce the phenomenon of affiliated. It is really unavoidable, and the actual constructor should also be required to issue a statement to clarify the relationship between the affiliated unit and the employer.
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]
The construction contract of this project is directly formed between the employer Dandong company and the actual constructor Shi. A company in Shenyang is only a construction enterprise that lends its qualification and name to assist both parties to achieve the purpose of the contract, and has not participated in the negotiation and actual performance of the contract. Both a company in Dandong and a certain Shi are aware of this. Because natural persons use their qualifications to contract construction projects in violation of the mandatory provisions of laws and administrative regulations, the relevant construction contracts and agreements formed between a company in Dandong, a company in Shi and a company in Shenyang are invalid contracts. According to the provisions of the relevant judicial interpretation of the Supreme Court, Shi, as the actual constructor of the disputed project in this case, is still entitled to claim the project price from the employer and a company in Dandong, the contract counterpart, according to the settlement standard agreed in the contract, for the completed quantities under the premise that the construction contract is invalid. However, its claim that a company in Shenyang, a qualified lender, should bear the payment of the project funds is unfounded in law.
[basic case]
In June 2012, a company in Dandong invited bids for the underground civil air defense project of Dandong Xin'an underground shopping mall (hereinafter referred to as Xin'an project), and a company in Shenyang won the bid.
On July 18, 2012, a company in Shenyang signed a construction project contract agreement with Mr. Shi, which agreed that a company in Shenyang agreed to construct the Xin'an project entirely by Mr. Shi.
On August 25, a company in Dandong signed a construction contract with a company in Shenyang to contract out the Xin'an project to a company in Shenyang. The supplementary agreement stipulates that the construction area is about 15000 ㎡, the contract price is tentatively agreed to be 75 million yuan, and the commencement date is tentatively determined to be September 10, 2012. The commencement date notified by Party A in writing shall prevail. The total construction period is expected to be 365 days. The project cost shall be settled according to the actual quantities of the project.
On October 11, in order to ensure the smooth progress of Xin'an project, a company in Dandong submitted a "cost analysis sheet of Xin'an underground civil air defense project" to Shi. It proposed that the project cost of Xin'an project should be calculated by the comprehensive unit price of 3650 yuan per square meter, and noted the relevant requirements and pending issues of Xin'an project. Shi raised an objection, Submit to a company in Dandong one copy of the "cost analysis table of underground civil air defense project of Xin'an pedestrian street". Based on the analysis of the project names listed in the "cost analysis table" of a company in Dandong, put forward the comprehensive unit price of the main project cost of 4050 yuan per square meter, and explain the relevant situation. After many negotiations, both parties signed a supplementary agreement on January 30, 2013 (hereinafter referred to as supplementary agreement II) Supplementary agreement II further stipulates the contract scope, project duration, contract method, project payment settlement method and other relevant contents of Xin'an project in supplementary agreement I.
During the construction of Xin'an project, Shi entered the construction site on June 23, 2012 according to the requirements of a company in Dandong to carry out preliminary engineering mapping and construction preparation and wait for commencement. However, by the end of August, the project had not started. On September 4, a company in Dandong held a project briefing meeting to inform that the original continuous construction scheme of Xin'an project could not be implemented, and the construction of the rest project needed to be carried out in sections. At the same time, a company in Dandong agreed to pay a compensation of 500000 yuan for the delay in work of Mr. Shi who entered the site in the previous year.
On March 8, 2014, the foundation and main body of the Xin'an project constructed by Shi was completed and the application for inspection and acceptance was made. As of May 17, after comprehensive inspection and acceptance of the Xin'an project by all parties involved, it was found that it met the project quality inspection and evaluation standards and was accepted as qualified. After the Xin'an project passed the inspection and acceptance, a company in Dandong actually used the project for subsequent decoration and sales. Shi believed that a company in Dandong and a company in Shenyang had not paid the project funds, which infringed on their legitimate rights and interests. Shi filed a lawsuit in this case. After trial, the court of first instance held that a company in Shenyang should not bear the liability for compensation.
Both Shi and Dandong Company disagreed with the judgment of first instance and appealed to the higher people's Court of Liaoning Province. The court of second instance held that a company in Shenyang was only a lender of qualification and not the counterpart of the contract, and Shi and Dandong company knew the situation well. Therefore, the appeal request of a company in Dandong and a company in Shenyang to pay the project funds was rejected.
[judgment result]
A company in Shenyang does not assume any responsibility.
[reasons for adjudication]
This case belongs to the construction contract dispute of the construction project, which is directly formed between the employer Dandong company and the actual constructor Shi. A company in Shenyang is only a construction enterprise that lends its qualification and name to assist both parties to achieve the purpose of the contract, and has not participated in the negotiation and actual performance of the contract. Both a company in Dandong and a certain Shi are aware of this. Because natural persons use their qualifications to contract construction projects in violation of the mandatory provisions of laws and administrative regulations, the relevant construction contracts and agreements formed between a company in Dandong, a company in Shi and a company in Shenyang are invalid contracts. According to the provisions of the relevant judicial interpretation of the Supreme Court, Shi, as the actual constructor of the disputed project in this case, is still entitled to claim the project price from the employer and a company in Dandong, the contract counterpart, according to the settlement standard agreed in the contract, for the completed quantities under the premise that the construction contract is invalid. However, its claim that a company in Shenyang, a qualified lender, should bear the project payment is not supported by the law.
To sum up, the court of second instance held that the appeal of Shi and a company in Dandong requesting a company in Shenyang to bear the liability for compensation was not tenable. Therefore, a company in Shenyang was ordered not to bear any responsibility according to law.
[relevant provisions]
Interpretation of the Supreme People's Court on the application of laws to the trial of construction contract disputes
[lawyer's opinion]
We believe that the relationship between a company in Shenyang and Shi is neither subcontracting, subcontracting nor internal contracting, and a company in Shenyang should not bear the responsibility for payment of project funds. The specific reasons are as follows:
1、 The project involved in the lawsuit was contracted first by the actual constructor, and the construction was carried out later in the name of a company in Shenyang.
For the letter of acceptance submitted by Shi. The notice shows that the "bidding method" is "invitation to bid", "the construction unit" is "a company in Dandong", "the winning unit" is "Jiangsu Jinling Construction Engineering Group", the winning unit "project manager" is "Shi", the project name is "underground commercial street of Xin'an pedestrian street in Yuanbao District, Dandong City (litigation related project)", and the date of the letter of acceptance is "June 19, 2012". It can be seen from the above that as early as June 19, 2012, a company in Dandong conducted an independent bidding, and the so-called "project manager" of the winning unit at that time was Shi. Moreover, the bidding method is invitation to bid. From a practical point of view, a company in Dandong, the bidding unit, has the right to decide on the winning bidder. Therefore, it can be judged that a company in Dandong decided from the very beginning to assign the project involved in the lawsuit to the actual construction person Shi, It was only later that Shi was appointed to carry out the construction in the name of a company in Shenyang (Note: the bidding documents submitted by Shi to your institute were submitted by a company in Dandong who entrusted the bidding agency to make up for them afterwards, and the relevant bidding and tendering documents were first seen by a company in Dandong when the parties exchanged evidence after the lawsuit. And there were obvious traces of forgery in the bidding documents.)
Therefore, when a company in Dandong, as the construction unit, again invited bids for the project involved in the lawsuit, although the nominal bid winner was changed, it was very obvious that Shi was the actual constructor designated by a company in Dandong, and that a company in Dandong had already known the real identity of Shi and the later substantive relationship between him and a company in Shenyang. In fact, the project was actually contracted by Shi first, Bidding, tendering and construction in the name of a company in Shenyang.
2、 The relationship between a company in Shenyang and Shi is neither subcontracting nor internal contracting.
The construction project contracting agreement signed by a company in Shenyang and Shi has made a detailed agreement on Shi's construction in the name of a company in Shenyang. It is agreed in Item 3 of Article 1: "the project price is tentatively RMB 75 million, and the final amount shall be subject to the actual settlement between Party B (SHI) and the construction unit (Dandong company)"; Article 5: "1. Party B (Mr. Shi) and Party A (a company in Shenyang) 2. Party A shall provide Party B with the materials required for undertaking the Dandong project at the time required by Party B, including but not limited to the relevant certificates of Party A's business license and qualification certificate, and the relevant materials required for project construction application, and ensure the authenticity and validity of the above documents and materials. Party A shall timely assist Party B in handling the project bidding, signing the agreement and handling the formalities required for the project construction, and the expenses shall be borne by Party B. "; Article 9: "Party B (SHI) of this agreement is the actual contractor of Dandong project..." it can be seen from the above contents that Shi is not an employee of a company in Shenyang. For the project involved in the lawsuit, Shi is only borrowing the qualification of a company in Shenyang to carry out the construction in the name of a company in Shenyang. During the construction period, he is responsible for the investment, purchase and lease, self management, independent accounting and self financing. A company in Shenyang is only a nominal construction party, and does not actually participate in the early contracting and construction of the project, nor does it enjoy construction interests for the project involved in the lawsuit. Therefore, the relationship between a company in Shenyang and Shi is neither subcontracting, subcontracting nor internal contracting. A company in Shenyang should not be the subject of payment of project funds and should not bear the payment obligation. We request your court to reject the lawsuit request of Shi against a company in Shenyang.
3、 On the investigation of criminal responsibility.
The bidding documents (including but not limited to the letter of bid, identity certificate of legal representative, power of attorney, total bid price document, etc.) submitted by Mr. Shi during the court hearing of this case are not stamped by a company in Shenyang, and the company in Shenyang is not aware of this. The above documents are suspected of being forged by others and affixed with the seal of a company in Shenyang. Therefore, a company in Shenyang reserves the right to investigate the criminal responsibility of the relevant forged seal subjects at any time.
This case belongs to a typical case of construction contract of construction project. The subject matter involved is large and the case is complex. Generally, in judicial practice, the actual constructor often claims the project funds from the affiliated unit and requires the affiliated unit to bear the responsibility. However, in this case, when Shi, as the actual constructor, claimed the project funds from a company in Shenyang that lent him the qualification, he was not supported by the court. In this case, in order to protect the legitimate rights and interests of a company in Shenyang, the agent, through investigation and evidence collection, analysis of the case, sorting out the legal relationship, and promotion at all levels, found that the construction unit Shi had conducted two bidding for the project involved in the lawsuit, and the "project manager" of the winning unit was the actual constructor of this case. Accordingly, the agent explained to the court of first instance and the court of second instance that although a company in Dandong, the construction unit, once again conducted bidding for the project involved in the lawsuit, and changed the nominally successful bidder, it was very obvious that the actual constructor of the case was Shi. The construction unit has already appointed the actual constructor, and a company in Dandong has already known the real identity of Shi and the actual relationship between Shi and a company in Shenyang. The project is actually contracted by Shi, the actual constructor, and Shi carries out bidding and construction in the name of an affiliated company in Shenyang. The fact that the affiliated company in Shenyang and Shi are neither subcontracting, subcontracting nor internal contracting has obtained the support of the court of first instance and the court of second instance according to law, and finally the legal rights and interests of the affiliated company in Shenyang are protected according to law. The affiliated company in Shenyang does not bear any responsibility. This case has a certain forward-looking and guiding significance for the legal application of project price in the field of construction projects.
This case covers several substantive and procedural disputes in the field of construction engineering. In judicial practice, the actual constructor often requires the affiliated unit to bear joint and several liabilities when claiming the project funds from the employer. If the affiliated unit does not leave necessary evidence in the actual operation, it will often suffer heavy losses due to small losses. Therefore, in order to prevent potential risks, we suggest that the affiliated unit try its best to reduce the phenomenon of affiliated. It is really unavoidable, and the actual constructor should also be required to issue a statement to clarify the relationship between the affiliated unit and the employer.
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