The corresponding contract is invalid because it violates the mandatory provisions of the law.
The subcontractor’s claim that the “management fee” shall be deducted from the paid project price shall not be supported; If the construction party claims to return the “management fee” or the project price does not deduct the “management fee”, it shall be supported.
Legal issues: how to deal with the “management fee” agreed in the contract when the construction contract of the construction project is determined to be invalid? Different views a said: referring to the contract agreement, when the construction project passes the completion acceptance, although the construction contract of the construction project is invalid, the project price shall still be paid according to the contract agreement, “management fee” belongs to an integral part of the construction project price, so it shall be handled according to the agreement.
If the “management fee” is an integral part of the project price and the subcontractor has actually participated in the construction organization, management and coordination, it can be handled with reference to the contract; If the subcontractor makes profits purely through subcontracting, does not actually participate in construction organization, management and coordination, and advocates “management fee” after the contract is invalid, it shall not be supported.
4 construction company could not be established.
The project involved in the case has passed the completion acceptance and been delivered for use, and a has paid all the project funds to B.
Therefore, the court of second instance found that the above two agreements were invalid and not improper.
Therefore, the interpretation of the Supreme People’s Court on the application of law in the trial of disputes over construction contracts of construction projects (I) (FSH [2020] No.
14, and the new judicial interpretation has no provisions on civil sanctions.
Subcontractors, illegal subcontractors and affiliated parties (hereinafter referred to as subcontractors) who claim “management fees” from subcontractors and affiliated parties (hereinafter referred to as construction parties) shall be supported, and subcontractors who require the return of “management fees” shall not be supported.
B said: under the circumstance of invalid return, the “management fee” agreed in the contract belongs to illegal income, and the relevant provisions in the contract are invalid, so the treatment of invalid contract should be referred to.
If the parties to the contract claim to adjust the project price on the ground that the “management fee” as the contract price should be collected, it shall not be supported.
The above provisions on civil sanctions in the general provisions of the civil law that came into force in 2017 and the civil code that came into force in 2021 have been abolished, that is, the people’s court will not confiscate illegal income when trying civil cases, and the illegal acts involved in civil proceedings shall be subject to administrative punishment by relevant administrative departments.
The people’s court may, in accordance with Article 134 of the general principles of the civil law, confiscate the illegal gains obtained by the parties.
4 construction company and the subcontracting fee agreement between ran Zhimin and Li Boqu and Liu Taigui were invalid terms, and there was no improper application of law.
The phenomenon of affiliation, subcontracting and illegal subcontracting in the field of construction engineering is very common.
4 construction company or ran Zhimin did not provide evidence to prove that they actually provided management services for the project involved, and the court of second instance also found that in (2017) qian03 Minzhong No.
A contracts the project involved to contractor B (construction company) in the form of public bidding.
4 construction company clearly stated that “after the appellee No.
Therefore, the court of second instance held that the management fee agreement between ran Zhimin and Guizhou No.
Opinion of the judge’s meeting: when Cai C said that the construction contract of the construction project is invalid due to illegal subcontracting, illegal subcontracting or affiliation, the handling of the “management fee” charged by the subcontractor agreed in the contract should be judged according to the specific purpose of the contract in combination with the situation of the case.
The court of second instance found according to law that the project involved in the case was that ran Zhimin borrowed the qualification of Guizhou No.
14) stipulates that the Contractor’s illegal subcontracting, illegal subcontracting of construction projects or unqualified actual constructors who sign construction contracts with others in the name of qualified construction enterprises are invalid.
763, the court considered that the reasons and reasons for the retrial application of Guizhou No.
For the former, if it is found that the subcontractor has actually participated in the construction management service, it can be handled with reference to the contract; For the latter, because the subcontractor has neither managed nor actually paid, there is no problem of discount return of its investment.
According to Article 2 of the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract dispute cases of construction projects, the project payment can be calculated with reference to the provisions of the contract, but it does not mean that the relevant provisions are independent and effective.
Based on the relativity of the contract, non contract parties cannot claim to adjust the project payment payable based on the agreement on “management fee” between the subcontractor and the subcontractor.
Related case (2019) supreme law min Shen No.
4 construction company to undertake the project and then subcontracted it to Li Boqu and Liu Taigui, and Guizhou No.
Article 4 of the interpretation of the Supreme People’s Court on the application of law in the trial of disputes over construction contracts of construction projects (fashi [2004] No.
How should the management fee agreed in the invalid contract be handled? Since the judicial department will no longer collect it, is the agreement on the management fee invalid? Please refer to the summary of the 7th Meeting of judges of the second circuit court of the Supreme People’s court in 2020: treatment of agreed management fee after the construction contract of the construction project is invalid.
When distributing the consequences of invalid contract, the principle of good faith should be followed, and the dishonest parties should not benefit from the invalidity of contract.
1、 In the second instance, Guizhou No.
4 construction company also said that “the project involved was that ran Zhimin borrowed the qualification of the appellant to undertake the project”, Therefore, the target responsibility statement I is an agreement signed by borrowing the qualification to undertake the project involved in the case, and the target responsibility statement II is an illegal subcontracting agreement for the project involved in the case.
4669 civil judgment, Guizhou No.
The third paragraph of Article 134 of the general principles of the civil law stipulates that when trying civil cases, in addition to applying the above provisions, the people’s court may also reprimand, order a sign of repentance, confiscate the property and illegal income from illegal activities, and impose a fine and detention in accordance with the provisions of the law.
Now C takes B as the defendant to bring a lawsuit to the people’s court and requests B to pay all the project funds; B argued that although the contract between B and C was invalid, the agreement on the project price should still be applied by reference, so the comprehensive management fee of 15% of the project settlement price should be deducted.
25), which came into force on January 1, 2021, has deleted Article 4 of FSH [2004] No.
4 construction company subcontracted the project funds to ran Zhimin through internal contracting, it completely withdrew from the management of the project, Therefore, the court of second instance found that he did not manage the project involved, had no right to collect management fees, and there was no lack of evidence.
Source: minutes of the meeting of judges of the second circuit court of the Supreme People’s Court (Volume II) transferred from: Shui haitaosheng..
C said: in the case of actual participation in management, some of the “management fees” agreed in the contract are part of the construction project price, and some are for the subcontracting profit of the subcontractor.
Later, B illegally subcontracted the project involved in the case to natural person C in the name of internal contracting, and agreed that the project settlement price shall be subject to the final project settlement total price between a and B, and C shall pay comprehensive management fee to B according to 15% of the total project settlement price.
Therefore, the court of second instance did not support the claim of Guizhou fourth construction company that Li Boqu and Liu Taigui should return the overpaid project funds, which is not lack of factual and legal basis.
The project funds paid by Guizhou fourth construction company and ran Zhimin did not exceed the project price due to Liu Taigui and Li Boqu after deducting the management fee.
