Text: Supreme People’s Court of the people’s Republic of China
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Even if there are quality problems such as cracks, after riyuexuan real estate company paid the project payment, Hao * Gang still needs to bear the warranty responsibility for its construction part within the warranty period, so he cannot defend against not paying the project payment
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The two buildings 11 and 12 involved in the project have not been completed, and there are cracks in the external wall insulation layer of buildings 5, 8 and 9
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Hao * Gang is not qualified to undertake the project and construction, and his illegal income shall be confiscated
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Therefore, the cost appraisal report should be used as the basis for determining the facts of this case《 Articles 4 and 5 of the mediation agreement agreed to pay the remaining amount on the basis of settlement and verification of the original payment, and did not require the remaining amount to be settled at 206 million yuan（ 2） There is indeed a mistake in the application of law in the judgment of second instance
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[gist of judgment] the focus of dispute in this case is: does the demobilized construction party need to claim the project payment for the constructed part after the completion acceptance of the whole project? 1
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1
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In conclusion, riyuexuan real estate company applied for retrial in accordance with paragraphs 2 and 6 of article 200 of the Civil Procedure Law of the people’s Republic of China
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The judgment of the second instance supports Hao * Gang’s request for project payment containing construction profits, which violates the third paragraph of Article 65 of the construction law of the people’s Republic of China, which is an error of applicable law
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Therefore, the reason that riyuexuan real estate company claims that the project payment should not be paid on the grounds that the project involved in the case has not been completed and accepted cannot be established
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The subsequent quality assurance and maintenance within the scope of completed projects shall be implemented in accordance with the years specified in laws and regulations
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Although it is not completely completed, Hao * gang has the right to claim the project payment from riyuexuan real estate company for the constructed part
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was rejected
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The retrial applicant Erdos riyuexuan Real Estate Development Group Co., Ltd
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The court has formed a collegial panel for examination according to law, and the examination has been concluded
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According to paragraph 1 of Article 204 of the Civil Procedure Law of the people’s Republic of China and paragraph 2 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: the retrial application of Erdos riyuexuan Real Estate Development Group Co., Ltd
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Riyuexuan real estate company claims that the project payment should not include the profit part
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Before signing the mediation agreement, both parties have jointly entrusted a third party to carry out cost appraisal on the completed quantities of Hao * Gang, which is RMB 182.26225.9 million
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Therefore, it was not improper for the second instance to determine the true intention of both parties in the later mediation agreement
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2100 retrial applicant (defendant of first instance and appellant of second instance): Ordos riyuexuan Real Estate Development Group Co., Ltd
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2
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Hao * gang did not put forward the re appraisal requirement, nor did he have legitimate reasons and provide opposite supporting materials to deny this conclusion
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2、 All projects just completed by Hao * have been included in the total project payment of RMB 206 million (206 million)
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Riyuexuan real estate company believes that the project cost should be approved as RMB 182.26225.9 million according to the project estimate (budget) made by the cost organization in May 2015
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First, on August 8, 2015, riyuexuan real estate company and Hao * Gang reached a mediation agreement, which agreed that “I
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If both parties really mean to determine the project cost based on the project estimate (budget), It should have made an expression of intention in the mediation agreement, but from the provisions of the mediation agreement, there was no such expression of intention
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Riyuexuan real estate company applied for retrial and said that (I) the judgment of the second instance found that Hao * gang had completed the project cost involved in the case of 206 million yuan, which was inconsistent with the facts and lacked evidence
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Chief judge Wan Ting judge pan Jie judge Yu Meng June 30, 2002 assistant judge Gao Ju clerk Zhao Yali contributed / exchanged: 41588897@qq.com For more “useful” information, please pay attention to “audit number”! Statement: the official account respects originality and focuses on sharing
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However, the project estimate (budget) is made before the mediation agreement is signed
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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 already constructed, and the reason why 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 cannot be established
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Second, according to the facts found out, Hao * gang has constructed the project involved in the case
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Therefore, the second instance judgment determined that RMB 206 million is the cost of Hao * Gang’s completed projects, which is in line with the mediation agreement and is not improper
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Respondent (plaintiff of first instance and appellee of second instance): Hao * gang
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According to articles 1 and 2 of the mediation agreement signed by riyuexuan real estate company and Hao * Gang on August 8, 2015, the tax included cost of the total project involved is 206 million yuan, but Hao * gang has only completed the project with a cost of 182.26225.9 million yuan, and Hao * gang has no right to claim the payment of the total project price if the remaining projects are not completed
2
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Its claim has no legal basis, and the reason for its application for retrial on this point cannot be established
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On the premise that the project involved in the case did not meet the conditions for completion acceptance, the court of second instance applied the relevant provisions of the contract law of the people’s Republic of China and ordered riyuexuan real estate company to pay all the project funds, which was an error of applicable law
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They need to be repaired before completion acceptance, and do not meet the legal conditions for paying all project funds
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According to articles 1 and 2 of the mediation agreement, RMB 206 million was verified according to the quantities of the completed projects at the end of 2012, and both parties agreed that “all the projects completed by Hao * Gang have been included in the total project payment of RMB 206 million”
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The total project cost including tax shall be verified according to the quantities of the completed projects by the end of 2012: 206 million yuan only (206 million yuan)
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Defendant of first instance: Bai Erqing
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Thank you!.
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Civil ruling (2020) supreme law min Shen No
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(hereinafter referred to as riyuexuan real estate company) refused to accept the civil judgment (2019) neiminzhong No
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118 of the higher people’s Court of Inner Mongolia Autonomous Region and applied to the court for retrial due to the dispute over the construction contract of the second Qing construction project with the respondent Hao * gang and the defendant of the first instance
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After examination, the court believes that the focus of the dispute in this case is how to determine the amount of project funds that riyuexuan real estate company should pay Hao * gang
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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 cannot defend against not paying the project payment
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In conclusion, 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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Riyuexuan real estate company claimed that there were quality problems affecting the completion acceptance of the project, but did not submit evidence such as quality appraisal report, and Hao * gang had left the site when signing the mediation agreement, but both parties did not mention the quality problems in the agreement
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