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Malicious defense exists widely in civil and commercial litigation, especially in contract litigation
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After the signing of the contract, due to the changes of market conditions, the parties’ own factors, or the unpleasantness of cooperation, when one party finds that the continuous performance will bring disadvantages or the benefit of continuous performance is less than that of breaking the contract, it may request that the contract be deemed invalid on the ground of violation of law in the signing of the contract
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The following case, the second instance of the Supreme Court, involves the handling of the problem of “maliciously claiming that the contract is invalid” in the construction contract, which has a certain reference value
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(2019) Supreme People’s court No
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347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 no.347 No It is a kind of malicious defense behavior which is not honest and ignores others’ interests in pursuit of self-interest maximization
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The purpose of contract invalidation is to avoid the loss of the interests of the state, society and the third party, and to maintain the order of the rule of law and public morality
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If we support the demands of the violators, it will not only violate the purpose of establishing the invalid contract system, but also connive the violators to engage in illegal activities, making the invalid contract system a means for the violators to pursue improper or even illegal interests
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Appellant (defendant in the first instance): Xinjiang Huacheng Anju Real Estate Development Co., Ltd
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Appellee (plaintiff in the first instance): China Railway Construction Bridge Engineering Bureau Group Co., Ltd
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The appellant Xinjiang Huacheng Anju Real Estate Development Co., Ltd
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(hereinafter referred to as Huacheng real estate company) filed an appeal to the Supreme People’s court against the civil judgment (2017) No
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26 of the court of first instance in the case of construction contract dispute with the appellee China Railway Construction Bridge Engineering Bureau Group Co., Ltd
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(hereinafter referred to as railway construction Bridge Engineering Bureau)
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Huacheng real estate company appeals: 1
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Change the interest part of the performance bond in the third item of the first instance judgment, and change the judgment that Huacheng real estate company does not pay the interest of the performance bond of 4283790.64 yuan; 2
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Judge the railway construction Bridge Engineering Bureau to bear the litigation costs of the first and second instance of the case
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Facts and reasons: in the first instance, the validity of the construction contract of the blue collar apartment project in the cooperation zone (hereinafter referred to as the construction contract) was wrongly identified
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Before the start of the bidding process of the project in dispute, both parties have negotiated on the substantive contents such as the construction content, scope, budget estimate, construction period, contracting method, performance bond and its refund, cooperation to make CRBC win the bid, and signed the framework agreement of construction cooperation
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CRBC has paid 1 A performance bond of 10 million yuan
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The behavior of both parties violates the provisions of the bidding law and the judicial interpretation of construction contract, and the winning of the project and the construction contract of construction project are invalid
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2、 The way of dealing with the invalidity and validity of the contract is quite different
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There are some mistakes in the first instance, which should be sent back for retrial
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3、 The process of construction engineering is the process of materializing labor and building materials into construction products
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After the contract is invalid, it can not be applied to restore the original state, but can only be compensated at a discount
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Whether the construction products have value is the first condition of whether the discount compensation, no value is not compensated, only according to the fault compensation loss, and the measure of value is whether the project has passed the acceptance
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If the court of first instance finds out that the project has not been completed and has not been accepted, the discount compensation in Article 2 of judicial interpretation of construction contract should not be applied
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4、 In the case of invalid contract, Huacheng real estate company was judged to bear the interest of performance bond of 4283790.64 yuan in the first instance, without contract basis, factual basis and legal basis
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Tiejian Bridge Engineering Bureau argued: the “construction cooperation framework agreement” and “construction contract” involved in the case are the true intention of both parties, the content does not violate the mandatory provisions of relevant laws and regulations, and the contract is legal and effective
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The bid winning behavior in this case has not been deemed invalid by any administrative supervision department, and there is no situation in the judicial interpretation of construction contract that leads to the invalidity of construction contract of construction engineering
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Huacheng real estate company shall pay the interest on the performance bond if the project in dispute passes the main acceptance and meets the quality requirements
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The second instance of the Supreme People’s court held that the main focus of dispute was: first, whether the construction contract of the construction project involved in the case was valid; second, whether Huacheng real estate company should pay the interest on the performance bond of 4283790.64 yuan
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1、 As for the validity of the construction contract of the construction project involved in the case, Article 5 of the general provisions of the civil law stipulates that “when civil subjects engage in civil activities, they shall follow the principle of voluntariness and establish, change and terminate civil legal relations according to their own will.” Article 6 of the contract law stipulates: “the parties shall abide by the principle of good faith when exercising their rights and performing their obligations.” Article 8 stipulates: “a contract established in accordance with the law shall be legally binding on the parties
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The parties shall perform their obligations in accordance with the contract and shall not alter or terminate the contract without authorization
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” In this case, China Railway 13th Bureau Group Co., Ltd
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won the blue collar apartment project in the cooperation zone through bidding on May 8, 2012
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On May 9, 2012, Huacheng real estate company and China Railway 13th Bureau Group Co., Ltd
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signed the “construction contract of construction project” involved in the case
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The contract is the true intention of the parties, the content does not violate the mandatory provisions of relevant laws and regulations, legal and effective, both parties should strictly perform the contract
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Article 52 of the contract law stipulates: “a contract shall be invalid under any of the following circumstances: （5） It violates the compulsory provisions of laws and administrative regulations
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” Article 1 of the judicial interpretation of construction contract stipulates: “if a construction contract of a construction project has one of the following circumstances, it shall be deemed invalid in accordance with item (5) of Article 52 of the contract law （3） A construction project must be tendered, but it is invalid if it is not tendered or if it wins the bid
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” Article 43 of the law of the people’s Republic of China on Tendering and bidding stipulates: “before the successful bidder is determined, the bid inviting party shall not negotiate with the bidder on the bid price, bid scheme and other substantive contents.” Article 55 stipulates: “for a project subject to bidding according to law, if a bid inviting party, in violation of the provisions of this law, negotiates with the bidder on the bid price, bid scheme and other substantive contents, it shall be given a warning, and the person in charge and other persons directly responsible of the unit shall be punished according to law.
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