The description issued by Chongqing Wanzhou Jiangnan New Area Construction and Environmental Protection Bureau confirms that the contract price specified in the construction project construction permit for the project involved issued by the bureau to Ruichang company and CITIC company on May 21, 2011 is composed of the construction contract cost of 65.8 million yuan and 24.75 million yuan of materials supplied by Party A in the application materials for certificates between Ruichang company and CITIC company.
(formerly Sichuan Shengmao Construction Co., Ltd.), with its domicile at Caojin Road, Wuhou District, Chengdu City, Sichuan Province.
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（2） In the judgment of the second instance, Ruichang company assumed the payment responsibility for Bai Deqiang within the scope of project funds owed to CITIC company, and the applicable law was wrong.
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Shandong defuwei law firm ● click the blue word to pay attention to us ● the gist of the judgment of Yu Yi, the chief lawyer of the firm: Generally speaking, the distinction between subcontracting and affiliation should be judged mainly from whether the actual constructor (affiliation) has participated in the activities of contracting and negotiation stages such as bidding and contract conclusion.
The affiliated means that the contractor lends the qualification to the actual constructor.
Ruichang company applied for retrial, saying that (I) Ruichang company and CITIC company actually performed a construction contract with a contract price of 65.8 million yuan.
(hereinafter referred to as Ruichang company) refused to accept the civil judgment of Sichuan Higher People’s Court (2018) CMZ No.
Entrusted agent ad litem: Zeng Yuzhen, lawyer of Chongqing hezong law firm.
The basic facts were wrong.
Civil ruling of the Supreme People’s Court of the people’s Republic of China (2019) supreme law min Shen No.
Legal representative: Cheng Xiaobo, general manager of the company.
The third person in the first instance and the appellee in the second instance: Liu Yonggang, male, born on October 24, 1972, Han nationality, living in Wuhou District, Chengdu City, Sichuan Province.
Respondent (defendant of first instance and appellant of second instance): CITIC Guoan Construction Engineering Group Co., Ltd.
It is an important identification basis for the performance and implementation of the construction contract.
The actual constructor in subcontracting generally does not participate in bidding and conclude the general contract, and his willingness to undertake the project is generally after the signing of the general contract.
Therefore, generally speaking, it shall be reviewed and determined whether it is affiliated or subcontracting according to the payment subject and capital source of the bid security, whether the actual constructor (affiliated) signs the contract as the entrusted agent of the contractor, and whether the actual constructor (affiliated) has negotiated with the employer on contract matters.
The situation statement issued by Wanzhou District Construction Committee is issued several years after the completion of the project.
Entrusted agent ad litem: Teng Yanping, lawyer of Chongqing hezong law firm.
On December 12, 2018, the appraisal opinion issued by the judicial appraisal center of Southwest University of political science and law showed that the construction contract with a fixed total price of 90.55 million yuan was formed by copying, altering, printing and re copying on the basis of the construction contract with a contract price of 65.8 million yuan.
Entrusted agent ad litem: Xu Jiangliu, lawyer of Shanghai Jianwei (Beijing) law firm.
(hereinafter referred to as CITIC company) and Liu Yonggang, the third person of first instance (the appellee of second instance), Apply to the court for retrial.
The trial of this case has been concluded.
Article 26 (now article 43) if the actual constructor brings a lawsuit against a subcontractor or illegal subcontractor, the people’s court shall accept it according to law.
Based on the above facts, the construction contract price determined in the construction permit of construction project shall be recognized as 65.8 million yuan.
The construction organization design confirmed by Ruichang company, CITIC company and the project supervision unit indicates that Ruichang company and CITIC company signed the construction contract on May 13, 2011.
Entrusted agent ad litem: Dong cunzheng, lawyer of Beijing Tianchi Juntai (Chongqing) law firm.
According to the common sense of daily life, the staff of the committee can not explain the composition of the contract price so clearly.
Therefore, the situation statement is inconsistent with the facts and the formation process is doubtful, which should not be accepted.
The court accepted the case and formed a collegial panel to hear it according to law.
Entrusted agent ad litem: Ling Wei, lawyer of Sichuan Youdu law firm.
In conclusion, Ruichang company applies for retrial in accordance with items 1, 2, 3 and 6 of article 200 of the Civil Procedure Law of the people’s Republic of China.
Bai Deqiang and CITIC Corporation have formed an affiliated relationship based on the internal contract signed.
Therefore, Ruichang company stated in the retrial that its retrial agent found that the contract fraud on May 13, 2011 was completely contrary to common sense.
For the total price of materials supplied by Party A, Ruichang company makes different statements in different litigation stages in order to make up the total price of the project of 120 million yuan.
Article 26 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 applies to illegal subcontracting and illegal subcontracting of construction projects, not to affiliated cases.
The retrial applicant Chongqing Ruichang Real Estate Co., Ltd.
If the actual construction contractor claims the rights with the employer as the defendant, the people’s court shall add the subcontractor or illegal subcontractor as the third party in the case.
The judgment of the first and second instance found that both parties performed a construction contract with a fixed total price of 90.55 million yuan, and judged that CITIC company and Ruichang company were liable for payment according to the contract.
After finding out the amount of the construction project price owed by the employer to the subcontractor or illegal subcontractor, it shall make a judgment that the employer shall be liable to the actual construction contractor within the scope of the construction project price owed.
Entrusted agent ad litem: Xu Jiangliu, lawyer of Shanghai Jianwei (Beijing) law firm.
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The affiliated person in the affiliated relationship has generally participated in the bidding and contract signing stage, and even signed the construction contract with the employer in the name of the agent or representative of the affiliated person.
506 due to the dispute over the construction contract with the respondent Bai Deqiang, CITIC Guoan Construction Engineering Group Co., Ltd.
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The construction organization design is an important construction document prepared by CITIC and reviewed and approved by Ruichang company and the project supervision unit.
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Bai Deqiang submitted an opinion that the actual performance of the project involved in this case was the contract on May 13, 2011.
Therefore, even in the retrial procedure, Bai Deqiang fully approved the quotation of 48.5 million yuan for materials provided by Ruichang company a, plus the project payment of 90.55 million yuan claimed by Bai Deqiang, the total price of the project involved in the case is 139 million yuan, which is consistent with the basic situation..
Bai Deqiang is not the actual constructor of illegal subcontracting and illegal subcontracting, and has no right to claim the project payment from Ruichang company according to the provisions of the interpretation.
Legal representative: Zeng Qu, chairman of the company.
Subcontracting means that the contractor generally transfers the rights and obligations of the project to the actual constructor after undertaking the project.
After the first and second instance proceedings, the lawsuit lasted for several years.
Moreover, the materials supplied by Party A of 24.75 million yuan plus the contract price of 65.8 million yuan can not complete the construction project.
On July 6, 2011, Ruichang company and CITIC company jointly sealed and confirmed the notice of direct contracting of Chongqing construction project with a contract amount of 65.8 million yuan and submitted it to Chongqing Wanzhou District public resources comprehensive trading center for filing.
Ruichang company never raised any objection to the contract on May 13, 2011, but thought that both parties performed the contract on April 1, 2011.
As of September 2013, the amount of “materials supplied by Party A” of the project involved had reached 43077438 yuan.
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729 retrial applicant (defendant of the first instance and appellee of the second instance): Chongqing Ruichang Real Estate Co., Ltd., with its domicile in the office building of the Management Committee of Jiangnan New Area, Wanzhou District, Chongqing * *.
Respondent (plaintiff of first instance and appellant of second instance): Bai Deqiang, male, born on June 7, 1970, Han nationality, lives in Wuhou District, Chengdu City, Sichuan Province.
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