[introduction of the lawyer in this case]
Luo Dan, senior partner of Liaoning Tongfang law firm. He has worked as a lawyer for many years, especially in the legal affairs of construction contracts, real estate, companies and financial assets. He has served as the legal adviser of many well-known enterprises, including Liaoning Branch of Huaneng new energy Co., Ltd. and all its subsidiaries, Liaoning Weihua group, all subsidiaries of Hong Kong Nanhua group in Shenyang, Shenyang Linlong Technology Co., Ltd., China Railway Express Shenyang Branch, etc. In 2018, he was appointed as the legal adviser of the people's Government of Liaoning Province.
[referee points]
The construction contract of the construction project signed by the plaintiff and the defendant in this case clearly stipulates that the contract is in the form of fixed total price contract (the plaintiff is fully responsible for the materials, equipment, construction period, quality, construction technology, safety production and other management of the project), and is responsible for the completion acceptance and comprehensive acceptance of the project (including the re filing of the fire protection project); The project quality standard is qualified (meeting the requirements of fire protection standards and passing the acceptance related to fire protection); Within 7 working days after the signing of the contract, the defendant shall pay 30% of the total price to the plaintiff. After the completion acceptance is qualified and the government pays the defendant the money involved in the project, the defendant shall pay 95% of the total contract price to the plaintiff within 10 working days after receiving the plaintiff's invoice, and the remaining 5% is the quality guarantee fund. During the trial of this case, the plaintiff and the defendant unanimously confirmed that the defendant had paid the plaintiff 3562500 yuan for the project involved, accounting for 67.8% of the total contract price. As the project involved did not pass the fire acceptance and comprehensive acceptance, the payment conditions were not met. The plaintiff's claim shall be deemed to have no specific facts and reasons.
[basic case]
The plaintiff claims that on November 25, 2015, the defendant Shenyang Yiming Real Estate Co., Ltd. and the plaintiff Shenyang Tian'an Fire Engineering Co., Ltd. signed the construction project construction contract. The defendant contracted the "comprehensive transformation project of central decentralized shantytown in Shenyang New District - equipment pump house, fire engineering, water supply external network engineering and external wall fire isolation belt Engineering" to the plaintiff, with a contract amount of 5255800 yuan. In addition, entrusted by the defendant, During the construction, the plaintiff incurred a project cost of 661614.82 yuan for the foundation support and dewatering of the fire pump house. After the contract was signed, the plaintiff actively organized the construction of the project, and completed the whole project on August 2, 2017, and submitted it to the construction unit, i.e. the supervision unit, for acceptance and formed the project completion acceptance report. Now all the projects are delivered to the construction unit. The plaintiff believes that the defendant has only paid 3562500 yuan for the project, but still owes 2354914.82 yuan for the project, and requests the defendant to pay.
Lawyer Luo Dan accepted the entrustment of Shenyang Yiming Real Estate Co., Ltd. and put forward the following defense opinions: 1. The plaintiff did not complete the fire acceptance and did not meet the payment conditions of the project funds; 2. This case is a fixed total price contract, and the foundation pit support and dewatering are not the increased price of design change, and the court should not support it; 3. This case is a government project. The contract clearly stipulates that the government payment is the prerequisite for the payment of the project funds. Since the government has not paid the project funds, the defendant has no reason to pay. According to the investigation of the people's Court of Shenbei New District, the project involved in this case did not meet the payment conditions, and the plaintiff's claim should be regarded as having no specific facts and reasons.
[judgment result]
Shenyang Shenbei New District People's Court: rejected the lawsuit of the plaintiff Shenyang Tian'an Fire Engineering Co., Ltd.
[reasons for adjudication]
The people's Court of Shenyang Shenbei New District held that: the construction contract of construction project signed by the plaintiff and the defendant in this case clearly stipulates that the contracting method is a fixed total price contract (the plaintiff is fully responsible for the management of materials, equipment, construction period, quality, construction technology and safety production of the project), and is responsible for the completion acceptance and comprehensive acceptance of the project (including the re filing of the fire protection project); The project quality standard is qualified (meeting the requirements of fire protection standards and passing the acceptance related to fire protection); Within 7 working days after the contract is signed, the defendant shall pay 30% of the total contract price to the plaintiff. After the completion acceptance is qualified and the government pays the defendant the money involved in the project, the defendant shall pay 95% of the total contract price to the plaintiff within 10 working days after receiving the plaintiff's invoice, and the remaining 5% is the quality guarantee fund. During the trial of this case, the plaintiff and the defendant unanimously confirmed that the defendant had paid the plaintiff 3562500 yuan for the project involved, accounting for 67.8% of the total contract price. As the project involved did not pass the fire acceptance and comprehensive acceptance, the payment conditions were not met.
[relevant provisions]
Article 67 of the contract law; Article 119 and paragraph 1 (3) of Article 154 of the Civil Procedure Law of the people's Republic of China; Paragraph 3, Article 208 of the interpretation of the Supreme People's Court on the application of the Civil Procedure Law of the people's Republic of China.
[lawyer's opinion]
This case shows that the people's court has strictly examined the payment terms of the project funds required by the plaintiff during the trial of the construction contract dispute of the construction project. The construction contract of the construction project signed by the plaintiff and the defendant clearly stipulated the contract mode, acceptance standard and payment terms. The plaintiff filed a lawsuit with the court to require the defendant to pay all the project funds on the premise that the payment conditions were not met, If there is no relevant basis and no specific facts and reasons, the plaintiff's lawsuit shall be rejected according to law.
Luo Dan, senior partner of Liaoning Tongfang law firm. He has worked as a lawyer for many years, especially in the legal affairs of construction contracts, real estate, companies and financial assets. He has served as the legal adviser of many well-known enterprises, including Liaoning Branch of Huaneng new energy Co., Ltd. and all its subsidiaries, Liaoning Weihua group, all subsidiaries of Hong Kong Nanhua group in Shenyang, Shenyang Linlong Technology Co., Ltd., China Railway Express Shenyang Branch, etc. In 2018, he was appointed as the legal adviser of the people's Government of Liaoning Province.
[referee points]
The construction contract of the construction project signed by the plaintiff and the defendant in this case clearly stipulates that the contract is in the form of fixed total price contract (the plaintiff is fully responsible for the materials, equipment, construction period, quality, construction technology, safety production and other management of the project), and is responsible for the completion acceptance and comprehensive acceptance of the project (including the re filing of the fire protection project); The project quality standard is qualified (meeting the requirements of fire protection standards and passing the acceptance related to fire protection); Within 7 working days after the signing of the contract, the defendant shall pay 30% of the total price to the plaintiff. After the completion acceptance is qualified and the government pays the defendant the money involved in the project, the defendant shall pay 95% of the total contract price to the plaintiff within 10 working days after receiving the plaintiff's invoice, and the remaining 5% is the quality guarantee fund. During the trial of this case, the plaintiff and the defendant unanimously confirmed that the defendant had paid the plaintiff 3562500 yuan for the project involved, accounting for 67.8% of the total contract price. As the project involved did not pass the fire acceptance and comprehensive acceptance, the payment conditions were not met. The plaintiff's claim shall be deemed to have no specific facts and reasons.
[basic case]
The plaintiff claims that on November 25, 2015, the defendant Shenyang Yiming Real Estate Co., Ltd. and the plaintiff Shenyang Tian'an Fire Engineering Co., Ltd. signed the construction project construction contract. The defendant contracted the "comprehensive transformation project of central decentralized shantytown in Shenyang New District - equipment pump house, fire engineering, water supply external network engineering and external wall fire isolation belt Engineering" to the plaintiff, with a contract amount of 5255800 yuan. In addition, entrusted by the defendant, During the construction, the plaintiff incurred a project cost of 661614.82 yuan for the foundation support and dewatering of the fire pump house. After the contract was signed, the plaintiff actively organized the construction of the project, and completed the whole project on August 2, 2017, and submitted it to the construction unit, i.e. the supervision unit, for acceptance and formed the project completion acceptance report. Now all the projects are delivered to the construction unit. The plaintiff believes that the defendant has only paid 3562500 yuan for the project, but still owes 2354914.82 yuan for the project, and requests the defendant to pay.
Lawyer Luo Dan accepted the entrustment of Shenyang Yiming Real Estate Co., Ltd. and put forward the following defense opinions: 1. The plaintiff did not complete the fire acceptance and did not meet the payment conditions of the project funds; 2. This case is a fixed total price contract, and the foundation pit support and dewatering are not the increased price of design change, and the court should not support it; 3. This case is a government project. The contract clearly stipulates that the government payment is the prerequisite for the payment of the project funds. Since the government has not paid the project funds, the defendant has no reason to pay. According to the investigation of the people's Court of Shenbei New District, the project involved in this case did not meet the payment conditions, and the plaintiff's claim should be regarded as having no specific facts and reasons.
[judgment result]
Shenyang Shenbei New District People's Court: rejected the lawsuit of the plaintiff Shenyang Tian'an Fire Engineering Co., Ltd.
[reasons for adjudication]
The people's Court of Shenyang Shenbei New District held that: the construction contract of construction project signed by the plaintiff and the defendant in this case clearly stipulates that the contracting method is a fixed total price contract (the plaintiff is fully responsible for the management of materials, equipment, construction period, quality, construction technology and safety production of the project), and is responsible for the completion acceptance and comprehensive acceptance of the project (including the re filing of the fire protection project); The project quality standard is qualified (meeting the requirements of fire protection standards and passing the acceptance related to fire protection); Within 7 working days after the contract is signed, the defendant shall pay 30% of the total contract price to the plaintiff. After the completion acceptance is qualified and the government pays the defendant the money involved in the project, the defendant shall pay 95% of the total contract price to the plaintiff within 10 working days after receiving the plaintiff's invoice, and the remaining 5% is the quality guarantee fund. During the trial of this case, the plaintiff and the defendant unanimously confirmed that the defendant had paid the plaintiff 3562500 yuan for the project involved, accounting for 67.8% of the total contract price. As the project involved did not pass the fire acceptance and comprehensive acceptance, the payment conditions were not met.
[relevant provisions]
Article 67 of the contract law; Article 119 and paragraph 1 (3) of Article 154 of the Civil Procedure Law of the people's Republic of China; Paragraph 3, Article 208 of the interpretation of the Supreme People's Court on the application of the Civil Procedure Law of the people's Republic of China.
[lawyer's opinion]
This case shows that the people's court has strictly examined the payment terms of the project funds required by the plaintiff during the trial of the construction contract dispute of the construction project. The construction contract of the construction project signed by the plaintiff and the defendant clearly stipulated the contract mode, acceptance standard and payment terms. The plaintiff filed a lawsuit with the court to require the defendant to pay all the project funds on the premise that the payment conditions were not met, If there is no relevant basis and no specific facts and reasons, the plaintiff's lawsuit shall be rejected according to law.
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