[introduction of the lawyer in this case]
Han Ying, senior partner and managing partner of Liaoning Tongfang law firm. He served as a representative of the 17th and 18th people's Congress of Tiexi District, Shenyang, and a director of the Sixth Council of Liaoning Criminal Law Research Association. He has won the honorary titles of "excellent lawyer of Liaoning Province", "Shenyang May 4th Medal", "Shenyang excellent young lawyer" and so on.
[referee points]
1. If there is evidence to prove that the "project lump sum agreement" reflects the settlement intention of both parties, it can be used as a settlement agreement;
2. In case of any dispute between the two parties over the scope of the third party a project, the quantities in the contract shall be taken as the basis for judgment. In case of any difference between the quantities in the contract due to the "yin yang contract", the recorded contract shall prevail;
3. For the quantities outside the contract that occur objectively but have not been signed, the cost can be identified through the as built drawing.
[basic case]
XX real estate company awarded the w community project to XX construction company through bidding. A certain construction company will bid in the form of list quotation according to the requirements of the bidding documents and win the bid. After winning the bid, a construction company and a real estate company signed the construction contract of construction project (model text) and filed it with the relevant departments. In addition, XX construction company also signed a construction agreement with XX real estate company according to the requirements of XX real estate company.
During the construction process, a large number of work quantities outside the contract have been generated, most of which have formed the project certification sheet. Some visa forms include the signatures and seals of three parties (the construction party, the supervision party and the construction party) and determine the cost of the certified quantities. Some visas have the signatures and seals of three parties, but there is no definite amount. Some of the visa forms only have the seals of the supervision unit and the construction party, and some of the visa forms submitted to a real estate company were detained and lost.
After the completion acceptance of the project, the persons in charge of both parties negotiated on the settlement issue. A construction company claimed that the project involved in the project had generated a project visa of more than 17 million yuan, while a real estate company claimed that the project involved in the project had more than 15 million yuan of "three a" (controlled by Party A, supplied by Party A and outsourced by Party A). Therefore, the two parties negotiated that the visa part was offset with the "three a" project, and the total cost agreed in the contract was 83 million yuan as the total project cost for settlement, Therefore, the project lump sum agreement was signed, which only vaguely agreed that the total project cost was 83 million yuan.
After the signing of the agreement, due to personnel changes in the management of a real estate company, the settlement problem was delayed again and again. A certain construction company submitted settlement documents to a certain real estate company according to the contract, and cooperated in submitting the bill of quantities for the review of a certain real estate company. However, in the end, a certain real estate company denied that the project lump sum agreement was a settlement agreement and did not agree to settle with a certain construction company according to 83 million yuan. As a result, a construction company filed a lawsuit to require a real estate company to pay the project payment in arrears. After hearing the case in the first instance, the Shenyang intermediate people's court supported the request of a construction company, and a real estate company filed an appeal. In the second instance, the Liaoning Provincial Higher People's court ruled to remand the case. After the remand, the Shenyang intermediate people's court again supported the appeal of a construction company, and then a real estate company appealed again. The Liaoning Provincial Higher People's court made a final ruling, rejected the appeal and upheld the original judgment. After that, XX real estate company applied to the Supreme People's court for retrial, which was rejected.
[judgment result]
Supported the application of a construction company, and ordered a real estate company to pay nearly 17 million yuan of the project payment owed by a construction company and the delayed interest.
[reasons for adjudication]
The focus of the dispute in this case is whether the lump sum agreement is a settlement agreement and whether the settlement can be carried out according to the total project cost agreed in the agreement. After the court's trial, it was found that the lump sum agreement was formed after the completion and acceptance of the project, so from the perspective of time nodes, the type of agreement signed at this time may be of settlement nature.
However, a certain construction company completed the proof to the court by applying for appraisal, proving that the incremental cost of the project outside the contract is equivalent to the cost of the third class a project. According to Article 3 of the general principles of civil law, "civil activities shall follow the principle of voluntariness, fairness and compensation for equal value", and in combination with the filing contract, the total cost determined by the list quotation method is 83 million yuan, The people's court shall determine that the two parties shall make settlement according to the total cost agreed in the project lump sum agreement.
[relevant provisions]
Interpretation of the Supreme People's Court on the application of laws to the trial of construction contract disputes
Article 19 Where the parties have disputes over the quantities of works, they shall be confirmed according to the written documents such as visas formed during the construction process. If the contractor can prove that the employer agrees to the construction, but fails to provide the visa documents to prove that the quantities have occurred, it can confirm the actual quantities according to other evidences provided by the parties.
Article 21 Where the construction contract of a construction project concluded by the parties separately for the same construction project is inconsistent in substance with the bid winning contract that has been filed, the bid winning contract that has been filed shall be taken as the basis for settling the project price.
[lawyer's opinion]
1. Both parties signed the filed construction contract of construction project in the form of list quotation, and at the same time, both parties also signed the construction agreement. In this agreement, the scope of the contract was substantially changed, and the construction cost of a construction company was reduced from 83 million to 61 million. Compared with the filed contract, the construction agreement is an agreement followed in the actual performance process, with more detailed technical details and settlement agreements, Once the settlement agreement nature of the lump sum agreement cannot be adhered to, and the whole project is evaluated and appraised, it is difficult to avoid using the provisions of the construction agreement for reference, and the risk of the total project price will be greatly increased. Therefore, the nature of the lump sum agreement has become the core focus of this lawsuit, which is the most favorable litigation strategy for a construction company.
2. As for the claim that the lump sum agreement is a settlement agreement, the evidence is not optimistic except that the signing time is after completion. Therefore, in order to persuade the referee to accept this view, we must take reasonable facts as support. Therefore, the project increment of the two sides as the abutment and the third class a project must be equal, or the foundation for establishment will be lost.
3. The loss of the project visa does not affect the investigation of the facts of the case. Because some of the visa documents held by a construction company are not returned by a real estate company or some of the projects are refused to sign for confirmation, the agent can go to the urban construction archives to obtain the as built drawings, and then apply to the appraisal institution for appraisal according to the drawings, so as to determine the objective incremental cost of the project.
4. The premise of determining the cost of the third class a project is to determine the original scope of the contract. During the trial, XX real estate company presented nearly 40 million class III project contracts. However, through comparison with the contents of the construction list in the bidding documents of XX construction company, it was found that most of the contents were not within the scope of the contract, so they should not be deducted from the project funds of XX construction company.
5. Acceptance standard of Engineering Certificate sheet. If there is an agreement, follow the agreement. If there is no clear agreement, in principle, the owner and the construction party shall seal at the same time or have their authorized representatives sign. Without the signature and seal of the construction party, but with the seal and confirmation of the supervision unit, the objective existence of the quantities can be confirmed, but the specific value can be submitted to the judicial appraisal for confirmation.
Han Ying, senior partner and managing partner of Liaoning Tongfang law firm. He served as a representative of the 17th and 18th people's Congress of Tiexi District, Shenyang, and a director of the Sixth Council of Liaoning Criminal Law Research Association. He has won the honorary titles of "excellent lawyer of Liaoning Province", "Shenyang May 4th Medal", "Shenyang excellent young lawyer" and so on.
[referee points]
1. If there is evidence to prove that the "project lump sum agreement" reflects the settlement intention of both parties, it can be used as a settlement agreement;
2. In case of any dispute between the two parties over the scope of the third party a project, the quantities in the contract shall be taken as the basis for judgment. In case of any difference between the quantities in the contract due to the "yin yang contract", the recorded contract shall prevail;
3. For the quantities outside the contract that occur objectively but have not been signed, the cost can be identified through the as built drawing.
[basic case]
XX real estate company awarded the w community project to XX construction company through bidding. A certain construction company will bid in the form of list quotation according to the requirements of the bidding documents and win the bid. After winning the bid, a construction company and a real estate company signed the construction contract of construction project (model text) and filed it with the relevant departments. In addition, XX construction company also signed a construction agreement with XX real estate company according to the requirements of XX real estate company.
During the construction process, a large number of work quantities outside the contract have been generated, most of which have formed the project certification sheet. Some visa forms include the signatures and seals of three parties (the construction party, the supervision party and the construction party) and determine the cost of the certified quantities. Some visas have the signatures and seals of three parties, but there is no definite amount. Some of the visa forms only have the seals of the supervision unit and the construction party, and some of the visa forms submitted to a real estate company were detained and lost.
After the completion acceptance of the project, the persons in charge of both parties negotiated on the settlement issue. A construction company claimed that the project involved in the project had generated a project visa of more than 17 million yuan, while a real estate company claimed that the project involved in the project had more than 15 million yuan of "three a" (controlled by Party A, supplied by Party A and outsourced by Party A). Therefore, the two parties negotiated that the visa part was offset with the "three a" project, and the total cost agreed in the contract was 83 million yuan as the total project cost for settlement, Therefore, the project lump sum agreement was signed, which only vaguely agreed that the total project cost was 83 million yuan.
After the signing of the agreement, due to personnel changes in the management of a real estate company, the settlement problem was delayed again and again. A certain construction company submitted settlement documents to a certain real estate company according to the contract, and cooperated in submitting the bill of quantities for the review of a certain real estate company. However, in the end, a certain real estate company denied that the project lump sum agreement was a settlement agreement and did not agree to settle with a certain construction company according to 83 million yuan. As a result, a construction company filed a lawsuit to require a real estate company to pay the project payment in arrears. After hearing the case in the first instance, the Shenyang intermediate people's court supported the request of a construction company, and a real estate company filed an appeal. In the second instance, the Liaoning Provincial Higher People's court ruled to remand the case. After the remand, the Shenyang intermediate people's court again supported the appeal of a construction company, and then a real estate company appealed again. The Liaoning Provincial Higher People's court made a final ruling, rejected the appeal and upheld the original judgment. After that, XX real estate company applied to the Supreme People's court for retrial, which was rejected.
[judgment result]
Supported the application of a construction company, and ordered a real estate company to pay nearly 17 million yuan of the project payment owed by a construction company and the delayed interest.
[reasons for adjudication]
The focus of the dispute in this case is whether the lump sum agreement is a settlement agreement and whether the settlement can be carried out according to the total project cost agreed in the agreement. After the court's trial, it was found that the lump sum agreement was formed after the completion and acceptance of the project, so from the perspective of time nodes, the type of agreement signed at this time may be of settlement nature.
However, a certain construction company completed the proof to the court by applying for appraisal, proving that the incremental cost of the project outside the contract is equivalent to the cost of the third class a project. According to Article 3 of the general principles of civil law, "civil activities shall follow the principle of voluntariness, fairness and compensation for equal value", and in combination with the filing contract, the total cost determined by the list quotation method is 83 million yuan, The people's court shall determine that the two parties shall make settlement according to the total cost agreed in the project lump sum agreement.
[relevant provisions]
Interpretation of the Supreme People's Court on the application of laws to the trial of construction contract disputes
Article 19 Where the parties have disputes over the quantities of works, they shall be confirmed according to the written documents such as visas formed during the construction process. If the contractor can prove that the employer agrees to the construction, but fails to provide the visa documents to prove that the quantities have occurred, it can confirm the actual quantities according to other evidences provided by the parties.
Article 21 Where the construction contract of a construction project concluded by the parties separately for the same construction project is inconsistent in substance with the bid winning contract that has been filed, the bid winning contract that has been filed shall be taken as the basis for settling the project price.
[lawyer's opinion]
1. Both parties signed the filed construction contract of construction project in the form of list quotation, and at the same time, both parties also signed the construction agreement. In this agreement, the scope of the contract was substantially changed, and the construction cost of a construction company was reduced from 83 million to 61 million. Compared with the filed contract, the construction agreement is an agreement followed in the actual performance process, with more detailed technical details and settlement agreements, Once the settlement agreement nature of the lump sum agreement cannot be adhered to, and the whole project is evaluated and appraised, it is difficult to avoid using the provisions of the construction agreement for reference, and the risk of the total project price will be greatly increased. Therefore, the nature of the lump sum agreement has become the core focus of this lawsuit, which is the most favorable litigation strategy for a construction company.
2. As for the claim that the lump sum agreement is a settlement agreement, the evidence is not optimistic except that the signing time is after completion. Therefore, in order to persuade the referee to accept this view, we must take reasonable facts as support. Therefore, the project increment of the two sides as the abutment and the third class a project must be equal, or the foundation for establishment will be lost.
3. The loss of the project visa does not affect the investigation of the facts of the case. Because some of the visa documents held by a construction company are not returned by a real estate company or some of the projects are refused to sign for confirmation, the agent can go to the urban construction archives to obtain the as built drawings, and then apply to the appraisal institution for appraisal according to the drawings, so as to determine the objective incremental cost of the project.
4. The premise of determining the cost of the third class a project is to determine the original scope of the contract. During the trial, XX real estate company presented nearly 40 million class III project contracts. However, through comparison with the contents of the construction list in the bidding documents of XX construction company, it was found that most of the contents were not within the scope of the contract, so they should not be deducted from the project funds of XX construction company.
5. Acceptance standard of Engineering Certificate sheet. If there is an agreement, follow the agreement. If there is no clear agreement, in principle, the owner and the construction party shall seal at the same time or have their authorized representatives sign. Without the signature and seal of the construction party, but with the seal and confirmation of the supervision unit, the objective existence of the quantities can be confirmed, but the specific value can be submitted to the judicial appraisal for confirmation.
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