Wang Gang provided evidence of purchasing materials in the first instance, and the amount was far less than the raw materials required for the project involved in the case.
126 retrial applicant (defendant of the first instance and appellant of the second instance): Anqiu Hua’an Construction Co., Ltd., with its domicile at Weixu South Road * *, Anqiu City, Shandong Province.
Legal representative: Wang Lijie, chairman of the company.
Entrusted litigation agent: Zhang Meng, lawyer of Shandong Kangqiao law firm.
Hua’an company also recognized that it had paid Wang Gang more than 60 million yuan for the project alone.
Wang Gang said in the first instance that it was affiliated construction, which was inconsistent with the facts.
1.
Respondent (plaintiff in the first instance and appellee in the second instance): Wang Gang, male.
The third person in the first instance: Anqiu Lianzhong construction services Co., Ltd., with its domicile at Weixu South Road * *, Anqiu City, Shandong Province.
Hua’an company denies that Wang Gang borrowed his company’s qualification to engage in construction activities and has an affiliated construction relationship with him, which lacks factual and legal basis..
Therefore, it is not inappropriate for the second instance to determine that Wang Gang is the actual constructor of the project involved in the case.
In conclusion, Hua’an company was in accordance with the Civil Procedure Law of the people’s Republic of China Apply for retrial in accordance with paragraph 2 of article 200.
（2） In the second instance, it was wrong to regard the project payment paid by Hua’an company to Wang Gang as the direct factual basis for denying the tripartite partnership.
According to item (2) of Article 1 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, if an unqualified actual constructor borrows the name of a qualified construction enterprise for construction, the construction contract of construction projects shall be deemed invalid, and the “actual constructor” Refers to the contractor, sub contractor, qualified constructor or affiliated constructor of illegal professional engineering subcontract or labor operation subcontract; If the construction project is subcontracted several times, the actual constructor shall be the legal person, unincorporated enterprise, individual partnership, contractor and other civil subjects who finally actually invest funds, materials and labor to carry out the project construction.
Legal representative: Jia Feifei, manager of the company.
The determination of Wang Gang’s affiliated construction in the second instance is inconsistent with the evidence submitted by Hua’an company and Wang Shujun’s statement.
619 of Shandong Higher People’s court and applied to this court for retrial due to the dispute over the construction project construction contract with the respondent Wang Gang and the third person of first instance Anqiu Lianzhong construction services Co., Ltd.
2.
The fact that Hua’an company paid the project payment to Wang Gang, combined with the fact that Wang Gang submitted the monthly cash receipt and payment details to Hua’an company, just confirmed the existence of the tripartite partnership.
In this case, Wang Gang and Hua’an company did not sign a written affiliation agreement or borrowing qualification agreement, and Hua’an company claimed that its three branches participated in the construction management, but did not deny that Wang Gang actually invested funds, materials and labor in the project involved in the case.
Entrusted litigation agent: Zhang Xinxin, lawyer of Shandong Kangqiao law firm.
(hereinafter referred to as Lianzhong company).
The court of first instance determined that Wang Gang was the actual constructor of the project involved in the case only by purchasing some materials, which violated logical reasoning and daily life experience.
According to Article 272 of the contract law of the people’s Republic of China, the contractor is prohibited from subcontracting the project to units without corresponding qualifications.
This situation should still be recognized as the affiliation of illegal subcontracting in the construction contract of construction project.
The “contracted project” mentioned in the preceding paragraph includes participating in bidding, signing a contract, handling relevant construction procedures, engaging in construction and other activities “.
Wang Gang actually invested funds, materials and labor in the construction of the project involved in the case.
(2) in the second instance, the testimony of witnesses Wang and Niu and the statement of Wang Shujun can prove that the three parties jointly invested and participated in the project management involved in the case, and the three parties are in partnership.
The court believes that the focus of dispute in this case is whether there is an error in determining Wang Gang as the actual constructor of the project involved in the case in the second instance.
According to Article 10 of the administrative measures for the identification, investigation and punishment of illegal acts such as construction subcontracting (Trial Implementation) “Affiliated” refers to the act of a unit or individual contracting a project in the name of other qualified construction units.
Civil judgment of the Supreme People’s Court of the people’s Republic of China (2019) supreme law min Shen No.
Retrial applicant: Anqiu Hua’an Construction Co., Ltd (hereinafter referred to as Hua’an company) refused to accept the civil judgment (2018) Lu Min Zhong No.
Hua’an company applied for retrial and said, （1） Wang Gang was identified as the actual constructor of the project involved in the case in the second instance, which was lack of evidence.
From the facts found out in the first and second instance, Wang Gang signed a large number of installation and construction contracts on the project involved in the case in the name of Hua’an company.
(1) In the first instance, the evidence submitted by Hua’an company is sufficient to prove that Hua’an company participated in the whole process of contract signing, management, construction, acceptance and settlement of the project involved in the case.
The court has formed a collegial panel to examine the case according to law, and the examination has been concluded.
Wang Gang has neither provided affiliated agreement nor provided the qualification of his affiliated Hua’an company to participate in bidding, signing a contract Evidence of handling relevant construction procedures and engaging in construction activities.
Supreme Court: the construction project has been subcontracted several times, How should the “actual constructor” identify the “actual constructor” of [gist of judgment] Refers to the contractor, sub contractor, qualified constructor or affiliated constructor of illegal professional engineering subcontract or labor operation subcontract; If the construction project is subcontracted several times, the actual constructor shall be the legal person, unincorporated enterprise, individual partnership, contractor and other civil subjects who finally actually invest funds, materials and labor to carry out the project construction.
Because Wang Gang does not have the construction qualification of construction project, even if several parties advocated by Hua’an company carry out construction in the form of partnership and cooperation, it is also the case that Hua’an company allows unqualified personnel to contract the project in the name of the enterprise.
