5 of Changchun intermediate people’s Court of Jilin Province; And rejected Li Jianguo’s claim.
If the borrower chooses to use the qualification of the lender to contract construction projects, chooses the behavior that is not allowed by law and obtains benefits, it shall also bear the legal risks that may not be protected by law.
Based on the study of thousands of judgment documents of the Supreme Court and combined with their own experience in handling a large number of construction cases, the lawyer team of Yunting construction engineering summarizes the practical experience on similar issues in this case as follows for readers’ reference in practical operation: first, borrowing qualification construction is strictly prohibited by law..
All the projects undertaken by Jianhe branch have been negotiated by Li Jianguo, who has also invested in advance and organized workers to build.
On March 4, 2011, East Asia company signed the contract for air force construction and installation project of Shenyang Military Region with Changchun Office of Air Force officer housing development center of Shenyang Military Region to undertake the phase II project of Lantian Jiayuan, with the contract price of 83.561772 million yuan.
on January 9, 2012, Meng Fansheng and others sued East Asia company to Changchun intermediate people’s Court on the ground of sales contract dispute.
Changchun intermediate people’s court rejected Li Jianguo’s objection in.
Its business scope is to contract construction projects at home and abroad.
Summarize practical experience, never forget the past, and be a teacher for the future.
East Asia company only charges management fees.
In the case of construction with borrowed qualification, can the borrower exclude the enforcement of other creditors of the lender as the actual constructor? Author / Zhang Hailong, Peng Zhenkun, Guo Jing (Beijing Yunting law firm) ▷ reading tips: in the construction practice of construction projects, borrowing qualification construction is common.
72 of Jilin Higher People’s court and the civil judgment (2014) Chang min Er Chu Zi No.
Brief introduction I.
2、 East Asia company was established on July 9, 1993.
On March 24, 2006, Changchun Administration for Industry and Commerce issued the business license of Jianhe branch.
5、 Later, Li Jianguo filed a lawsuit against execution, requesting that Changchun intermediate people’s court should not execute the deposit of 5850435100 yuan in the account of Jianhe branch of East Asia company.
In the process of implementation, Changchun intermediate people’s court actually frozen the account deposit of Jianhe branch of East Asia company of RMB 5.8504351 million.
The State implements strict qualification management for construction.
On March 17, 2006, East Asia company applied to Changchun Administration for Industry and Commerce for the establishment of a branch, Jianhe branch of East Asia company.
3、 Since the establishment of Jianhe branch of East Asia company, Li Jianguo has been the actual investor.
The lawyer team of Yunting construction engineering believes that the borrower cannot exclude the enforcement of the lender and other creditors on this ground.
Contracting projects with qualification is prohibited by the construction law and the regulations on the quality management of construction projects.
Once the lender’s arrears to others are returned by judgment, the court will often freeze the lender’s bank account for enforcement, and the project funds borrowed for qualified construction will also be frozen.
On September 28, 2012, Changchun intermediate people’s court ruled that East Asia company shall pay Meng Fansheng steel payment of RMB 731930620 and pay liquidated damages within 10 days from the effective date of this judgment.
Third, when the qualified borrower should know that it is illegal to borrow the qualification to contract the project and that the project funds may be applied for enforcement measures by the lender’s creditor, he still goes against the law.
The Supreme People’s court revoked the civil judgment (2015) jmyzz No.
Second, Article 24 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 (I) stipulates that when the contract is invalid but the completion acceptance is qualified, the discount compensation with reference to the project price agreed in the contract is not a permission to borrow qualification for construction, but a protective measure for vulnerable groups such as migrant workers under specific circumstances.
Li Jianguo is the actual contractor of Jianhe branch.
The second phase of Lantian Jiayuan project was also negotiated and organized by Li Jianguo, who paid part of the money in advance.
The funds entered into the lender’s account are the lender’s property.
The reason why the borrower claims that the money belongs to his personal property has no legal basis and is not enough to exclude enforcement.
The focus of legal analysis of this case is whether the borrower can exclude the enforcement of the lender’s other creditors as the actual constructor in the case of construction with borrowed qualification.
Jianhe branch of East Asia company pays 30000 yuan of business expenses to East Asia company every year and 100000 yuan of engineering expenses to East Asia company every year.
The 5.85043510 million yuan was transferred from the air force officer housing development center of Shenyang Military Region to the phase II project of Lantian Jiayuan community of Jianhe branch of East Asia company on December 17, 2012.
The person in charge of Jianhe branch was changed to Li Jianguo on May 29, 2013.
The analysis is as follows: first, construction projects are related to public safety and public interests.
How will the court deal with it? The purpose of the judgment is that the behavior of borrowing qualification for construction is prohibited by law and judicial interpretation.
At this time, the borrower raises a lawsuit against execution as the actual constructor.
Under the background of “replacing business tax with value-added tax”, the project funds are often remitted by the employer to the bank account of the qualified Lender, and then the lender transfers them to the borrower’s account in the name of paying labor fees and material fees.
If the law protects it again, it is not conducive to the implementation of laws and regulations and the protection of good customs.
The business scope is to engage in project contracting within the business scope of the affiliated company, and its civil liability shall be borne by the affiliated company.
4、 Li Jianguo raised an objection to the execution, holding that the 5850435100 yuan seized by the court was the income from Li Jianguo’s contracting of Jianhe branch of East Asia company and the construction of Lantian Jiayuan phase II project, and requested the court to lift the freeze on the amount.
