[Henan Construction Engineering lawyer Si Zhanqi, provides you with professional legal advice, Tel: 13592388335] [gist of judgment] the focus of the dispute in this case is: does the construction party who has left the construction site claim the project payment for the part that has been constructed only after the completion and acceptance of the whole project? 1
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Although the construction party has completed part of the project involved in the case, it has the right to claim the project payment from the construction unit for the part that has been constructed
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The reason that the construction unit claims that the project payment should not be paid on the ground that the project involved in the case has not been completed and accepted is not tenable
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2
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After the employer pays the project payment, the construction party still needs to bear the warranty responsibility for its construction part within the warranty period, so it can not plead not to pay the project payment
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Text: the Supreme People’s Court of the people’s Republic of China
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Civil ruling (2020) sfmmshen No
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2100 retrial applicant (defendant in the first instance and appellant in the second instance): Erdos riyuexuan Real Estate Development Group Co., Ltd
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Respondent (plaintiff of first instance and appellee of second instance): Hao Haigang
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Defendant in the first instance: Bai Erqing
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The retrial applicant Erdos riyuexuan Real Estate Development Group Co., Ltd
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(hereinafter referred to as riyuexuan real estate company) applied to this court for retrial because of the case that Hao Haigang and the first instance were accused of the construction contract dispute of Erqing construction project
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A collegial panel has been formed in accordance with the law to conduct the review, and the review has now ended
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Riyuexuan real estate company applied for retrial, saying that (1) the judgment of the second instance found that Hao Haigang had completed the project involving 206 million yuan, which is inconsistent with the facts and lack of evidence
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According to articles 1 and 2 of the mediation agreement signed by riyuexuan real estate company and Hao Haigang on August 8, 2015, the total project cost involved in the case is 206 million yuan, but Hao Haigang only completed the project with a cost of 182.26225.9 million yuan, and Hao Haigang has no right to claim to pay the total project price if the remaining project is not completed
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Before the signing of the mediation agreement, both parties have jointly entrusted a third party to carry out the cost appraisal of Hao Haigang’s completed quantities, which is 18226259 million yuan
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Hao Haigang did not put forward the request for re appraisal, nor did he have any justifiable reason to deny this conclusion by providing the opposite supporting materials
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Therefore, the cost appraisal report should be used as the basis for determining the facts of this case
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Articles 4 and 5 of the mediation agreement stipulate that the remaining amount shall be paid on the basis of settlement and verification of the original payment, but it is not required to settle the remaining amount according to 206 million yuan
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（2） There is indeed a mistake in the application of law in the judgment of the second instance
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1
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The court of second instance ordered riyuexuan real estate company to pay all the project funds on the premise that the project involved does not have the conditions for completion acceptance, which is a mistake of applicable law
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No
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11 and No
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12 buildings were not completed, and No
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5, No
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8 and No
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9 buildings had cracks in the external wall insulation layer, which needed to be repaired before completion acceptance, and they did not have the legal conditions to pay all the project funds
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2
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The judgment of the second instance supports Hao Haigang’s claim for project payment with construction profit, which violates the third paragraph of Article 65 of the construction law of the people’s Republic of China, and is a mistake of applicable law
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If Hao Haigang is not qualified to contract and construct the project, his illegal income should be confiscated
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To sum up, riyuexuan real estate company applied for retrial in accordance with Article 200 (2) and (6) of the Civil Procedure Law of the people’s Republic of China
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After examination, the court held that the focus of the dispute in this case was how to determine the amount of project payment that riyuexuan real estate company should pay to Hao Haigang
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First, on August 8, 2015, riyuexuan real estate company and Hao Haigang reached a “mediation agreement”, which agreed that “1
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The total project cost including tax will be determined by the quantities of the completed projects at the end of 2012: 206 million yuan (206 million yuan)
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2、 All the projects completed by Hao Haigang have been included in the total project funds of 206 million yuan (206 million yuan)
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The follow-up quality assurance and maintenance contents within the scope of the completed projects shall be implemented according to the years specified by laws and regulations
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According to Article 1 and Article 2 of the mediation agreement, 206 million yuan was approved according to the quantities of the completed projects at the end of 2012, and both parties agreed that “all the projects completed by Hao Haigang have been included in the total project cost of 206 million yuan”
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Therefore, the second trial judgment concluded that 206 million yuan is the construction cost of Hao Haigang’s completed projects, which is in line with the agreement of the mediation agreement
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Riyuexuan real estate company believes that the approved project cost should be RMB 18226259 million according to the project budget (budget) made by the cost organization in May 2015
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However, before the signing of the mediation agreement, if the real intention of both parties is to use the project budget (budget) to determine the project cost, it should be confirmed in the mediation agreement However, according to the agreement in the mediation agreement, there is no such expression of intention
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Therefore, it is not improper for the second trial to determine the true intention of both parties by the later mediation agreement
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Second, according to the facts, Hao Haigang has constructed the project involved in the case
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Although the project has not been completely completed, Hao Haigang has the right to claim the project payment from riyuexuan real estate company for the part that has been constructed
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Therefore, the reason that riyuexuan real estate company claims that the project payment should not be paid on the ground that the project involved in the case has not been completed and accepted cannot be established
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Riyuexuan real estate company claimed that there were quality problems affecting the completion acceptance of the project, but it did not submit the quality appraisal report and other evidence
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When signing the mediation agreement, Hao Haigang had left the site, but both parties did not mention the quality problems in the agreement
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Even if there are cracks and other quality problems, after riyuexuan real estate company paid the project payment, Hao Haigang still needs to bear the warranty responsibility for the construction part within the warranty period, so he can not plead not to pay the project payment
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Riyuexuan real estate company claims that the project payment should not include the profit part, and its claim has no legal basis, so the reason for its application for retrial on this point can not be established
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To sum up, the retrial application of riyuexuan real estate company does not comply with the provisions of article 200 of the Civil Procedure Law of the people’s Republic of China
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According to the first paragraph of Article 204 of the Civil Procedure Law of the people’s Republic of China and the second paragraph of article 395 of the interpretation of the Supreme People’s Court on the application of the Civil Procedure Law of the people’s Republic of China, the ruling is as follows: refute Return to Erdos riyuexuan Real Estate Development Group Co., Ltd
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Judge Wan Ting, judge pan Jie, judge Yu Meng, judge assistant Gao Qi, clerk Zhao Yali, Henan Si Zhanqi, lawyer Henan Haojun, executive director of Henan Haojun law firm, graduated from the law department of Zhengzhou University, and graduated from China University of political science and law
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Served as the legal adviser of Henan Road and Bridge Construction Group Co., Ltd
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and other construction companies, mainly engaged in criminal defense, construction contract business disputes and enterprise legal adviser
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Professional, dedicated, serious and responsible for the work, to maximize the legitimate interests of the client, is the goal of the attorney! Address: room 2205 and 2208, 22 / F, building B, Huicheng international, southeast corner of intersection of Shenhuo Avenue and Xiangjun Road, Shangqiu City Tel: 13592388335
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