Therefore, the reason why China Australia Construction Engineering Group Co., Ltd
.
In this case, it does not affect the fair competition of other bidders
.
If the source label is wrong or infringes your rights and interests, please inform us and delete them after verification..
.
It is judged that China Australia Construction Engineering Group Co., Ltd
.
Therefore, the judgment was changed to confirm the special contract terms 24
.
After hearing the case, the court of second instance held that according to Article 1 of the interpretation of the Supreme People’s Court on legal issues applicable to the trial of disputes over construction contracts of construction projects (II), “in addition to the winning contract, the applicant and the winning bidder shall sign a separate contract for the purchase of contracted real estate, uncompensated housing supporting facilities, transfer of profits, donation of property to the construction unit, etc
.
For the special conditions of contract 24
.
determined that the donation terms specially agreed in special contract terms 24
.
the construction contract of construction project, both parties directly included “in the bid winning filing contract, in order to support the public welfare undertakings of community medical and health services, after the completion of the project, RMB 286006 was given (and) to the employer according to 5% of the bid winning price of the project”, It is a preference voluntarily given by China Australia Construction Engineering Group Co., Ltd
.
significantly higher than the market price, If the project price is reduced in a disguised form, and one party requests confirmation of invalidity on the ground that the contract deviates from the substantive content of the winning contract, the people’s court shall support it “
.
The government or state-owned control company as the employer occupies a dominant position in large-scale construction projects
.
It is specially agreed: “after careful study, the contractor decides to give 286006 yuan to the employer according to 5% of the bid winning price of the project after the completion of the project in order to support the public welfare undertakings of community medical and health services
.
that does not exceed the profit range of the project
.
The specially agreed donation terms are invalid
.
After the judgment of the first instance was pronounced, China Australia Construction Engineering Group Co., Ltd
.
(the Contractor) won the bid
.
Therefore, it is recognized that the special contract terms 24 of the construction project construction contract signed by both parties are binding on both parties, and the project is a health cause, The public welfare undertakings referred to in the donation law of the people’s Republic of China for public welfare undertakings, as public welfare non-profit institutions, can accept donations in accordance with the law
.
Even if the donation is a public welfare institution, its essence is still a substantial change in the content of the project price in the name of donation, which violates the prohibitive provisions of the law, and the donation terms shall be confirmed to be invalid
.
[case] on December 6, 2011, Yunyang Shuangjiang people’s Hospital (the employer) invited public bidding for the construction of Yunyang Shuangjiang community health service complex building, and China Australia Construction Engineering Group Co., Ltd
.
The construction contract of the construction project in this case is valid
.
This article is for exchange and study only, and the copyright belongs to the original author
.
Yunyang Shuangjiang people’s Hospital claimed that it was a public welfare donation accepted
.
will give 5% of the project price, totaling 286006 yuan to (and) the employer
.
In judicial practice, the people’s court should give full play to its judicial function, never ignore the legitimate rights and interests and legitimate demands of private enterprises under the pretext of safeguarding public interests, ignore the protection of their legitimate rights and interests, and truly provide judicial services and help for private enterprises
.
In order to obtain a place in the highly competitive construction market, private enterprises as contractors often adopt the way of profit transfer, Promise to transfer a certain amount of project price to the employer before bidding, or sign a separate transfer contract inconsistent with the winning contract after bidding, and agree to take this as the basis for performance
.
On January 30, 2012, both parties signed the construction contract of construction project according to the bidding documents, and the contract price was 5720134.11 yuan, Special Clause 24
.
Since this clause is a legal form of donation to cover up the illegal purpose of changing the bid winning contract price and violates the prohibitive provisions of the law, the donation clause shall be confirmed to be invalid and the donation of 286006 yuan shall be returned as the project fund
.
According to Articles 3 and 12 of the law of the people’s Republic of China on donation of public welfare undertakings, the special terms of the contract 24
.
Yunyang Shuangjiang people’s hospital should pay the donation of 286006 yuan as the project fund to China Australia Construction Engineering Group Co., Ltd【 [judge’s statement] at present, China’s construction market generally presents the current situation that the contractor is in an advantageous position and the contractor is in a disadvantageous position
.
The argument of Yunyang Shuangjiang people’s hospital could not be established, and the appeal reason that China Australia Construction Engineering Group Co., Ltd
.
Yunyang Shuangjiang people’s Hospital argued that the construction contract of construction project was signed according to the bidding documents, and Yunyang Shuangjiang people’s hospital was a public welfare non-profit institution
.
It not only damages the normal bidding procedures, but also damages the legitimate rights and interests of private enterprises as contractors
.
Some articles cannot be contacted with the original author in time when they are pushed
.
filed an appeal
.
believed that this article was invalid was established
For this, the employer agrees to accept and thanks.” After the completion acceptance of the project, China Australia Construction Engineering Group Co., Ltd
.
sued to confirm the special contract terms in the construction contract of construction project 24
.
Special provisions are valid terms, and the other party shall perform them according to the provisions【 Trial] the court of first instance held that while signing the bid winning contract, i.e
.
The hospital believed that it was nominally through donation, which in essence was to reduce the project price in a disguised form
.
The special agreement was invalid
.
The essence of the donation terms specially agreed is no different from the “Yin-Yang contract”
.
The official account is dedicated to providing valuable legal reference materials to readers, which is a public welfare WeChat platform
.
Are invalid is not tenable and will not be supported
.
