The author wants to find some commonalities of such disputes by exploring the judgment ideas in court practice, so as to provide reference for everyone to predict the rules of construction contract litigation practice
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46 judgment of Henan Higher People’s court and (2016) XMZ No
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[(2014) min Yi Zhong Zi No
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and Wujiang Hengsen Real Estate Development Co., Ltd.] with regard to the general contracting management fee, during the construction, both parties determined that Nantong second construction was the general contracting unit, and Nantong second construction could receive 1% of the total subcontract price of Hengsen company
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As long as both parties have a clear agreement in the contract, the court will respect the true intention of both parties and express its support
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Typical case: the dispute over the construction contract between the Fourth Engineering Co., Ltd
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For China Railway Corporation’s claim of requiring Ruixun company to compensate for the management fee of 4078795 yuan according to the above contract terms, on the one hand, the contract involved in this case is not completed, but the situation that both parties agree to terminate the contract based on the fact that the project involved in the case cannot continue to complete the construction during the performance of the contract, Therefore, the preconditions of the general conditions of contract for all quantities changes after the completion of the contract are not met
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If it is considered that the actual construction person of the natural person can also obtain the fee, it will be an additional profit compared with the construction person of the enterprise
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of China Railway 22nd bureau group, Anhui Ruixun Transportation Development Co., Ltd
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As long as the withdrawal of fees complies with relevant regulations and the true intention of both parties, it should be supported
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This is the true intention of both parties, It should be confirmed（ 2） Although the general contractor will have the right to charge the fee when both parties have a clear agreement on the fee
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The court of second instance held that the case was an illegal subcontracting, and the two parties agreed that the collection of management fee was an agreement on illegal income, which should not be supported
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Generally speaking, the fee is charged by the general contractor from the construction unit
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Viewpoint 2: the second instance of construction contract disputes between China Railway fifth Bureau Group Co., Ltd
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On the other hand, according to the agreement in the memorandum, both Ruixun company and China Railway Corporation agree to define this part of the disputed expenses as a loss, which shall be the loss actually incurred by China Railway Corporation during the performance of the contract
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615 judgment of Hunan Higher People’s court
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Therefore, the court of first instance did not support the claim of China Railway Corporation without providing evidence to prove that China Railway Corporation increased its construction management cost by 4078795 yuan; China Railway Corporation’s appeal that Ruixun company should pay the increased management fee of this part shall be rejected
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However, the terms of the cost are usually found in the general terms of the construction contract of the construction project
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The above agreement shows that the premise of adjusting the management fee of China Railway Corporation is that the construction project of bid section 13 involved in the case is completed, and the project price is increased or reduced after adjusting the quantities agreed in all contracts, which actually leads to an increase in the project management fee
From the facts of this case, the contract involved in the case has not been fulfilled, but a kind of liquidation for the unfinished project in the case of termination of the contract
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Typical case: civil ruling on application for retrial of construction contract disputes between Sichuan Suining Xinmao Real Estate Development Co., Ltd., Wang Tiancheng and Sichuan Suining Xinmao Real Estate Development Co., Ltd., Wang Tiancheng and other construction projects [(2015) min Shen Zi No
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This management fee is different from the above enterprise management fee
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Article 52.3 of the general conditions of contract stipulates that if it is found that the contract price increases or decreases by more than 15% of the “effective contract price” after all adjustments made to the estimated quantities in the bill of quantities according to the changed cumulative results and actual measurement when issuing the handover certificate, the management fee of China Railway Corporation shall be adjusted
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However, judging from the case law of the Supreme People’s court, it does not believe that whether the right to collect enterprise management fees is related to the identity of the actual constructor
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Such opinion cases include (2015) yfmszz No
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Case in the bulletin of the Supreme People’s Court: [dispute over the construction contract of the construction project between Jiangsu Nantong Second Construction Group Co., Ltd
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2280] the court held that the calculation of enterprise management fees and fees in this case was carried out for the commercial and residential building projects involved in the case in accordance with relevant regulations, It has nothing to do with the identity of the actual constructor, so Xinmao company claims that the reason why Wang Tiancheng is an individual, so the two expenses should not be calculated is not tenable
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1、 Enterprise management fee（ 1） Enterprise management fee refers to the expenses incurred by construction and installation enterprises in the process of organizing construction, production and operation management, which belongs to the indirect cost of construction and installation engineering cost
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56] on whether Ruixun company should compensate China Railway Corporation for the management fee of 4078795 yuan
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2、 Management fee
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Moreover, as for the collection of management fee, both parties have agreed in the bidding cooperation agreement and the agreement
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The current practical treatment rules of Chinese courts for these expenses are very different
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Interpretation of case law: it can be seen from the above cases that when the project is not completed, the general contractor requires to increase the enterprise management fee, which shall meet at least the following requirements: the enterprise management fee can be increased if both parties agree on the increased quantities of the unfinished project; The general contractor can provide evidence to prove the actual increased management expenses（ 3） Can the natural person and the actual construction person obtain the enterprise management fee? The so-called enterprise management fee, literally, should be a fee that can only be charged by the enterprise, because compared with the natural person, the enterprise needs to consume more management costs, while the natural person generally does not have the expenditure
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When the quantity of works increases, whether the general contractor can increase the enterprise management fee is still a problem that needs attention
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379]: when the case reached the second instance, there was an opposite viewpoint
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The court of first instance shall correct the improper deduction of management fee from the project payment according to 10% of the project cost.
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Moreover, judging from the process of the parties in this case terminating the construction contract involved in the case, China Railway Corporation and Ruixun company have no agreement on the increase of management fee of unfinished projects in the process of contract performance; On the contrary, according to the agreement in the memorandum signed by China Railway Corporation and Ruixun company, both parties agree that this part of the loss shall be handled according to the claim procedure, which shows that both parties still have disputes over the claim, and Ruixun company has not agreed to pay this part of the project fund
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Viewpoint 1: first instance of construction contract disputes between China Railway fifth Bureau Group Co., Ltd
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and Anhui Expressway Holding Group Co., Ltd
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[Henan Construction lawyer Si Zhanqi, providing you with professional legal advice, Tel: 13592388335] in the construction contract dispute cases handled by the author and team members, who should bear the enterprise management fee, management fee, safe and civilized construction fee and tax is one of the common disputes
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The management fee at this place refers to the fee charged by the general contractor to the construction unit or the upper and lower levels of the construction relationship in the construction contract of the construction project
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[(2017) supreme law Minzhong No
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From previous cases, there are different views and disputes on which party should collect the fee
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Now they sue for return, which violates the principle of good faith, and the court of first instance will not support this claim
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China Railway Corporation has no evidence to prove that it actually increased the management expenses when the contract is not fulfilled, so it shall bear the burden of proof
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and Western China University Construction Group Co., Ltd.: the court of first instance of this case held that the construction unit Western China University Corporation recognized the expenditure and collection of management fees
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In a word, the true meaning of signing this clause between China Railway Corporation and Ruixun company includes two aspects: first, the project involved in the case has been completed and summarized; Secondly, China Railway Corporation actually generates increased management fees based on the increase or decrease of quantities
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Therefore, China Railway Corporation’s claim for management fee has no basis of agreement between the parties
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It is also a controversial cost in construction contract disputes
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and Western China University Construction Group Co., Ltd
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