This part of the cost shall be deducted from the project payment payable.
2、 Main economic indicators of Party B’s contracting: 1.
In the first instance, it was found that Nie Peishang’s rent of 662398.67 yuan was improper and corrected.
Therefore, the reconciliation conducted by both parties on July 2, 2019 is not the final confirmation of the income or remuneration of the project involved in Nie Peishang’s contract case.
The actual settlement value of the project involved in the case confirmed by both parties through reconciliation is 37811509.15 yuan, so the management fee is 1512460.37 yuan (37811509.15 yuan) × 4%).
From the agreed contents of the project contract involved in the case signed by both parties, Both parties employ Nie Peishang in the way of internal risk responsibility contracting, and take the income from Nie Peishang’s contracted operation as the reward.
Therefore, the project price and some related expenses including materials supplied by Party A and labor costs in the reconciliation table have been jointly confirmed by the parties after verification.
3.
On the question of whether the management fee should be deducted.
The interest shall be calculated at the annual interest rate of 6% of the unpaid amount from July 2, 2019 to the date of full payment of the project; The legal costs and other expenses shall be borne by the defendant.
In this case, Kelly company will use the amount jointly confirmed by both parties The difference between the materials and labor costs provided by Party A included in the project price and the actual materials and labor costs provided by Party A is the reason to reverse his previously recognized price amount and claim, and there is no factual basis for the deduction of the difference.
Therefore, Nie Peishang owed the lease fee for the equipment and equipment during the project construction Habit of issuing debit note for expenses.
This is the specific performance of the labor contract between both parties.
Although the project contract was signed by both parties on the a14-a24# building of Confucius cultural and creative park, the project involved in Nie Peishang’s construction case is continuous.
The reconciliation table of niepeishang Confucius Park project formed by both parties on July 2, 2019 For the reconciliation of the corresponding price, materials supplied by Party A, appropriation and other expenses of the project involved in Nie Peishang’s construction, both parties have signed and confirmed in the reconciliation table.
On whether the tax should be deducted.
As long as either party has evidence to deny or supplement the above reconciliation, it shall make settlement and confirmation on the basis of the original reconciliation.
Although Nie Peishang claimed in the second instance that the social insurance was paid by his personal contribution, he signed a labor contract with Kelly company because he was affiliated with Kelly company and Kelly company did not pay him wages.
The tax payment certificate number is indicated at the bottom of each invoice, and the corresponding tax payment certificate indicates that Kelly has paid 5942201.23 yuan for the above project price..
Nie Peishang also did not recognize it.
According to the investigation, the project price of the general contracting project involved in Kelly’s invoice and tax payment is 174580088.02 yuan.
As for whether the lease fee should be deducted or not.
Therefore, after the construction of the project involved in the Nie Pei contractor’s contract case, both parties shall settle the loss and profit according to the contract and the operation and management regulations of Kelly company, that is, to determine whether Nie Pei contractor can obtain income.
With regard to whether the difference between labor cost and materials supplied by Party A advocated by Kelly company should be deducted.
Focus 2: whether the first instance judgment finds that the amount of project funds owed by Kelly company is correct.
According to the receipts, relevant agreements, remittance vouchers and other evidence submitted by Kelly company in the first instance, Kelly company pays money to others on behalf of Nie Peishang for the project involved in the case, and the project contract signed between the two parties It is an internal risk responsibility contract, so Nie Peishang’s contracted construction behavior is managed and constrained by Kelly company.
Kelly company is a construction enterprise with corresponding qualifications.
If one party fails to pay the price or remuneration, the other party may require it to pay the price or remuneration.
[the court of second instance held that] Focus one is the effectiveness of the project contract signed by both parties.
The management fee shall be paid at 4% of the total settlement value; 2.
Both parties in the project contract It is clearly agreed that Nie Peishang shall bear the taxes and expenses.
Nie Peishang has signed a labor contract with Kelly company and participated in the payment of social insurance in Kelly company.
Kelly also claimed in the second instance that the appraisal expenses incurred in his application for appraisal in the first instance should be handled , because the purpose of his application for appraisal in the first instance was to prove his claim in this case, that is, to complete his burden of proof on his own claim in this case, and his claim was not tenable after the trial, the appraisal fee should be borne by Kelly company.
The internal contract of construction enterprise stipulates that taxes, management fees and other expenses shall be effectively deducted from the project price of the internal contractor [agreed in the internal project contract] 1、 Contracting method: contracting labor and materials.
In order to confirm the lease fee, Kelly company submitted the equipment lease form, lease fee statement, IOU and other evidence in the first instance.
All taxes and surcharges collected by the tax bureau shall be borne by Party B; 3.
Therefore, the settlement between both parties is not the settlement of the construction contract of construction project in the ordinary sense, but the settlement with the operation and management of Kelly company Settlement or reconciliation.
Although both parties have not re signed the contract on other projects other than the a14-a24# building constructed by Nie Peishang, both parties have also conducted settlement and review on the project price involved in the case at the same time according to the same standard, so the project involved in the case signed by both parties The validity of the contents agreed in the project contract shall apply to all the projects involved in Nie Peishang’s construction.
Kelly company has a basis for calculating the management fee according to the internal contract.
Kelly company entrusted the contracted project to Nie Peishang for construction, which is Kelly’s own business mode.
The project contract signed by both parties is an internal contract of the construction enterprise, which is binding on both parties.
Party B shall bear the river training fee, trade union fee and disabled persons’ security fund collected by the tax bureau.
Kelly company only claimed that Nie Peishang owed the lease fee and deducted it according to the above rent note and statement.
4.
2.
The IOU issued by Nie Peishang stated the amount of the unpaid lease fee.
Therefore, Nie Peishang’s appeal that the project contract signed by both parties is illegal subcontracting or illegal subcontracting should be invalid contract is not supported.
Therefore, the court will appeal against the project funds of both parties in the second instance The argument is analyzed item by item as follows: 1.
Except for the documents involved in the above debit note, Nie Peishang did not sign and confirm in the other documents provided by Kelly company.
It is not improper that Kelly company did not deal with it in the first instance.
The plaintiff Nie Peishang completed the project construction obligations as agreed in the contract, and the defendant Kelly company shall timely perform the obligation to pay the project funds.
However, there is insufficient evidence for the rent owed by Nie Peishang In this case, Nie Peishang did not provide evidence to prove that the expenses had been deducted by reconciliation between both parties, and Kelly company still holds the creditor’s right certificate, so the amount of 185312 yuan should be deducted from the project payment.
As mentioned above, the case signed by both parties involves the project contract It is an internal risk responsibility contract.
[Nie Peishang filed a lawsuit with the court of first instance] The defendant Kelly company was ordered to pay 3112515.64 yuan for the project, 17630 yuan for the construction insurance, 90516.08 yuan for the suspension of the project and 1020000 yuan for the renewal of the hotel, totaling 4240661.72 yuan.
[the court of first instance held that] The internal contracted construction contract signed by both parties is the true expression of intention of both parties, does not violate the legal provisions, and the legitimate rights and interests of both parties shall be protected by law.
Both parties in the project contract There is a clear agreement on the management fee, that is, the management fee shall be paid according to 4% of the total settlement value.
Kelly’s appeal claim is not supported.
