5
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4
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It can be seen that Jinghua school fulfilled most of the project funds payment obligations to Jinjiang company
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Because Jinghua school had objections to the appraisal opinion, the court of second instance entrusted the appraisal institution to further supplement the appraisal opinion
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The reason why Jinghua school applied for retrial that it should not accept the appraisal opinion cannot be established, and the court will not support it
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7
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The copyright belongs to the original author
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At the same time, Jinghua school applied for retrial and considered that there were problems in the appraisal procedure, such as illegal appraisal organization and appraisal basis, and wrong inclusion of others’ construction contents
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If the actual constructor withdraws from the site during the construction of the project involved in the case, and the employer has handed over the follow-up project to someone other than the case for construction, it shall be deemed that the employer has no objection to the project quality of the part constructed by the actual constructor
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If the source label is wrong or infringes your rights and interests, please inform us to delete
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In conclusion, the retrial application of Jinghua company does not meet the provisions of items 2, 3 and 6 of article 200 of the Civil Procedure Law of the people’s Republic of China.
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2
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Therefore, the judgment of the first and second instance determines to settle the project cost determined according to the construction scope provided by Jinjiang company, which is in line with the actual situation of the case and is not inappropriate
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8
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In addition, Jinghua school applied for retrial and held that the second trial did not include the commercial concrete, cement, gravel and labor costs of the secondary structure of the comprehensive experimental building and comprehensive teaching building in its paid error
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Although Dingji Baofeng Branch issued a statement requiring the project funds to be paid to the designated account, the specific designated account was not clear
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Jinghua school applied to the Supreme Court for retrial and held that Jinjiang company was neither the contractor nor the actual constructor of the project involved in the case
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Let’s see how the Supreme Court determined the quality of the original construction part and what to do with the actual constructor’s claim for the price of the completed project? Key points of judgment 1
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After appraisal, the appraisal is conducted according to the completed project construction scope of the subject matter determined by Jinjiang company, and the project cost involved in the case is 23281915.33 yuan; According to the construction scope provided by Jinghua school, the cost is determined as 15760168.33 yuan
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Since no written contract has been signed between Jinjiang company, Jinghua school and Dingji Baofeng branch, and Jinjiang company withdrew from the site before the completion of construction, both parties have not handled the handover procedures for the completed projects, and the relevant construction progress is not clear, Jinghua school applied for re examination and recognized that the project payment should be paid according to the progress agreed in the contract, The second instance ruled that the reason for the wrong payment in full could not be established, and the court did not support it
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2
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After that, Dingji Baofeng branch did not actually perform the contract, and the project involved in the case was actually constructed by Jinjiang company [actual constructor]
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The parties also issued cross examination opinions in combination with the evidence submitted by the parties, The judgment of the second instance held that the expert opinion procedure was legal, the conclusion was correct and accepted, and there was nothing wrong
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The application for retrial of Jinghua school cannot be established, and the court will not support it
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Therefore, the judgment of the first and second instance holds that the completed part of the project should be settled according to the facts
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On March 30, 2014, Jinghua school [Employer] contracted the civil works, water, electricity, heating and ancillary works involved in the school construction to Dingji Baofeng Branch [Contractor] at a lump sum price of 35 million yuan, and Li Baojiang signed at the contractor
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As Jinjiang company is the actual constructor of the project involved in the case, it provides corresponding construction data according to the project progress, which can objectively reflect the specific situation of the completed project
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Therefore, the second instance judgment did not support its claim on the grounds of insufficient evidence, The facts are well founded and correct
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During the construction of the project involved in the case, Jinjiang company withdrew from the site, and Jinghua school has handed over the follow-up project to outsiders for construction, which shall be deemed that Jinghua school has no objection to the project quality of the constructed part of Jinjiang company
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At the same time, Jinghua school has submitted relevant evidence to prove that 1.28 million yuan for commercial concrete materials, 156000 yuan for tower crane rental, 200000 yuan borrowed by Wang Yinghao, the project manager, and 477911.91 yuan for interior wall plastering should be included in the paid project funds, Accordingly, the second instance judgment confirmed that the project payment payable by Jinghua school was 6068003.42 (2328191533-15.1 million-1.28 million-156000-200000-477911.91), which was based on sufficient facts and was not inappropriate
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After examination, the appraisal opinion involved in the case was entrusted by the court of first instance to Qinghai Institute of planning and design in accordance with legal procedures upon the application of Jinjiang company
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Project quality and price account for the vast majority of such disputes
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In the lawsuit of this case, Jinjiang company applied for judicial appraisal of the completed part of the project involved in the case, and submitted relevant construction materials to the appraisal institution, which can also confirm the fact of its construction of the project involved in the case
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In the lawsuit, after checking the current accounts of both parties, Jinghua school has paid 15.1 million yuan for the project
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3
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Some articles cannot be contacted with the original author in time when they are pushed
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During the construction, Jinghua school paid 14.1 million yuan, of which 11.1 million yuan was directly paid to Jinjiang company and the other 3 million yuan was paid to Li Baojiang
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The completed part of the project of the actual constructor shall be settled according to the facts
Its request for Jinghua school to pay the project payment lacked factual basis
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In the project cost appraisal procedure, the appraisal is conducted according to the completed project construction scope of the subject matter determined by the actual constructor, and it is concluded that if there is a large difference between the project cost involved in the case and the cost determined according to the construction scope provided by the employer, because the actual constructor is the actual performer of the project construction, it shall provide corresponding construction data according to the project progress, It can objectively reflect the specific situation of the completed project, so it is settled according to the project cost determined by the construction scope provided by the actual constructor, which is in line with the actual situation of the case
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9
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Case and trial process 1
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Dingji Baofeng branch did not deny this fact
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In the following case, the employer handed over the project to others to continue the construction
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After review, although Jinghua school claimed that the above expenses should be paid by it and should be included in the paid items, the purchase notes and the heating equipment purchase and installation contract submitted by Jinghua school can only prove that it purchased steel, wires and cables and boilers, and there is no content of concrete, cement, sand and gravel and relevant labor costs incurred by the purchaser
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After review by the Supreme Court, Dingji Baofeng branch contracted the project involved in the case based on the construction contract with Jinghua school, but then Dingji Baofeng branch did not carry out specific construction, but subcontracted the specific construction to Jinjiang company
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Accordingly, the judgment of the first and second instance found that Jinjiang company was the actual constructor of the project involved in the case, which was based on sufficient facts and was not inappropriate
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