In view of Lin Yanping’s long-term personal housing construction work in the local area, Lin Shiji, Yang xueru and Lin Rongbo have reason to believe that Lin Yanping has the qualification and ability to undertake housing construction.
Only demolition can eliminate the danger.
Retrial applicant (plaintiff of first instance and appellee of second instance): Lin Rongbo, male, born in April 1977, lives in the Hong Kong Special Administrative Region.
According to Item 1 of Article 3 of the opinions of the Ministry of construction on strengthening the quality and safety management of village and town construction projects, the housing construction involved in the case shall comply with the mandatory provisions of the construction law of the people’s Republic of China.
Secondly, both parties in this case, one party is the subject who intends to use the project involved in the case to carry out commercial business activities, and the other party is the construction party.
4081 retrial applicant (plaintiff of the first instance and appellee of the second instance): Lin Shiji, male, born in May 1952, lives in the Hong Kong Special Administrative Region.
Respondent (defendant of first instance and appellant of second instance): Lin Yanping, male, born in January 1962, lives in Quanzhou City, Fujian Province.
Lin Shiji, Yang xueru and Lin Rongbo applied for retrial and said: first, the original judgment found that the rural housing construction contract in this case was invalid and the application of law was wrong.
If he has a major fault, he should bear the corresponding responsibility.
As Lin Yanping, the contractor of the project in this case, is a natural person and does not have the construction qualification specified in the above laws, the original judgment finds that the de facto rural housing construction contract formed between Lin Yanping and Lin Shiji, Yang xueru and Lin Rongbo is invalid and not improper.
The original judgment held that “because Lin Yanping did not have engineering construction qualification, Lin Yanping made a mistake in selecting Lin Yanping as the construction subject in time”, but the law did not stipulate that Lin Yanping must have engineering construction qualification in this case.
The retrial applicants Lin Shiji, Yang xueru and Lin Rongbo applied to the court for retrial against the civil judgment (2017) minminzhong No.
Construction enterprises are prohibited from exceeding the business scope permitted by their qualification level or contracting projects in the name of other construction enterprises in any form.
Article 26 of the construction law of the people’s Republic of China, the unit contracting construction projects shall hold the qualification certificate obtained according to law and contract projects within the business scope permitted by its qualification level.
In this case, Lin Yanping did not contract the project in the name of the enterprise, and it was wrong to quote this provision in the original judgment.
3、 In the original judgment, the house involved in the case has not been reviewed by the competent administrative department for design and construction conditions, and does not meet the preconditions for reconstruction.
Several opinions of the Ministry of construction on strengthening the quality and safety management of village and town construction projects III.
[judgment of the Supreme Court] the construction contract of an unqualified natural person undertaking the construction of a rural building with more than two floors (excluding) is invalid, and the parties shall share the responsibility according to the fault [judgment rules] the construction contract of an unqualified natural person undertaking the construction of a rural building with more than two floors (excluding) is invalid, and the parties shall share the responsibility according to the fault【 [key points of judgment] the case involves three floors of factory buildings and five floors of dormitory buildings, with a construction area of more than 300 square meters and an investment of more than 300000 yuan.
In conclusion, the case complies with the provisions of article 200 of the Civil Procedure Law of the people’s Republic of China and shall be retried..
Through on-site investigation, it is found that there are obvious long cracks in many beams and columns, which may indeed collapse.
2、 The determination of responsibility in the original judgment is wrong.
The demolition cost advocated by Lin Shiji, Yang xueru and Lin Rongbo is a direct loss caused by Lin Yanping’s behavior and should be supported.
It is wrong in the original judgment that both parties are at fault and should bear corresponding responsibilities.
Lin Yanping should bear all or most of the fault proportion, but the original judgment did not determine the fault proportion of both parties to the contract.
40 of Fujian Higher People’s court due to the dispute over the rural housing construction contract with the respondent Lin Yanping.
In addition, the administrative measures based on the original judgment have been abolished.
4、 The original judgment did not identify the fault proportion of both parties to the contract.
2.
Both parties should be aware of the legal provisions that the construction subject of the construction project must have construction qualification.
In this case, Lin Shiji, Yang xueru and Lin Rongbo contracted their rural houses to Lin Yanping for construction.
The factory buildings and dormitories involved in the case do not belong to the “rescue and disaster relief and other temporary housing buildings and farmers’ self built low-rise houses” stipulated in paragraph 3 of Article 83 of the construction law of the people’s Republic of China.
The court has formed a collegial panel to examine the case according to law, and the examination has been concluded.
Construction enterprises are prohibited from allowing other units or individuals to use their qualification certificates and business licenses in any form to contract projects in the name of their own enterprises.
Their construction shall comply with the provisions of Article 26 of the construction law of the people’s Republic of China, that is, “the unit contracting construction projects shall hold the qualification certificate obtained according to law, And undertake projects within the business scope permitted by its qualification level “.
The original judgment found that the houses involved in the case were not low-rise houses built by farmers, and Lin Yanping did not have construction qualification, and then found that the rural housing construction contract involved in the case was invalid.
Therefore, both parties are at fault for the invalidity of the construction contract involved in the case, and should bear corresponding fault liability respectively【 [legal provisions] 1.
Therefore, Lin Shiji, Yang xueru and Lin Rongbo have no fault in choosing Lin Yanping as the construction subject.
The houses involved in the case are identified as grade D and DSU.
Objectively, since 2000, there have been many cases of private houses with five or six floors or even higher constructed by individuals in villages and towns in this region.
For buildings with low technical requirements, individual construction is rigidly prohibited, which is inconsistent with the objective reality.
In this case, on the premise that both parties to the contract are found to be at fault, the fault proportion of both parties to the contract shall be determined, and the responsibility distribution shall be made accordingly.
At the same time, Lin Yanping should be aware of the provisions on construction.
Article 83 paragraph 3 this Law shall not apply to rescue and disaster relief and other temporary housing construction and construction activities of farmers’ self built low-rise houses.
(I) for all public construction projects in the planning area of established towns and market towns, all village and town construction projects with self built two floors (excluding two floors) or more, and other construction projects with an investment of more than 300000 yuan or a construction area of more than 300 square meters Schools, kindergartens, health centers and other public buildings within the scope of village construction planning (hereinafter referred to as projects above the quota) shall be supervised and managed in strict accordance with relevant national laws, regulations and mandatory standards for project construction【 Judgment document] civil ruling of the Supreme People’s Court of the people’s Republic of China (2020) supreme law and min Shen No.
He conceals that the construction must have construction qualification.
Therefore, the request of Lin Shiji, Yang xueru and Lin Rongbo for compensation for their demolition and reconstruction costs is not supported, and the application of the law is wrong.
Both parties are natural persons（ 1） Paragraph 3 of Article 83 of the construction law of the people’s Republic of China stipulates that “this Law shall not apply to rescue and disaster relief and other temporary housing construction and construction activities of farmers’ self built low-rise houses”《 Article 3 of several opinions on strengthening the quality and safety management of village and town construction projects did not determine that farmers’ self built low-rise houses refer to houses with less than two floors.
The original judgment found that “farmers’ self built low-rise houses” in paragraph 3 of Article 83 of the construction law of the people’s Republic of China refers to houses with less than two floors《 The first paragraph of Article 3, item 1 of several opinions on strengthening the quality and safety management of village and town construction projects is a management provision, and the latter paragraph on “the design must be entrusted to a qualified design unit and undertaken by a qualified construction unit” is applicable to “all additional storey expansion projects in the planning area of construction towns and market towns”, The house in this case is not an expansion project with additional floors, so it is wrong to quote this provision in the original judgment（ 2） Article 26 of the construction law of the people’s Republic of China is aimed at units and enterprises.
Retrial applicant (plaintiff of first instance and appellee of second instance): Yang xueru, female, born in January 1954, lives in the Hong Kong Special Administrative Region.
