The settlement and demobilization framework agreement of both parties stipulates that the settlement shall be carried out in accordance with the settlement terms of the supplementary contract for construction project construction.
According to the supplementary contract for construction project construction, the total project cost shall be reduced by 6% based on the fixed settlement as the total project cost, and the project cost involved in the discretionary case of the court of second instance shall not be reduced by 6%, which is inconsistent with the contract between both parties.
If one party requests confirmation of invalidity on the ground that the contract deviates from the substantive content of the winning contract, the people’s court shall support it.
Under special circumstances, when the project construction is completed or the construction contract is terminated, the parties sign an agreement to transfer profits.
First of all, we should follow the mandatory provisions of the bidding law and take the bid winning contract, bidding documents, bidding documents and bid winning notice as the settlement basis.
1502 judgment that the two construction contracts signed by company a and company B on September 8, 2010 and October 18, 2013 respectively violated the mandatory provisions on the effectiveness of the bidding law.
Secondly, if the contract letting party has claimed that the contract should be performed, the contract letting party has made an actual promise to support the settlement.
If the contract letting party has agreed that the contract should be performed, or if the contract letting party has agreed that the contract should be performed, the contract letting party has made an actual promise, which is the basis for the settlement.
4251 ruling rules: on the issue that the project cost claimed by a company should be reduced by 6%.
Supplementary agreement 3 stipulates that the project budget price and settlement price shall be determined by 5% of the floating profit of the pre tax project cost, which is the true intention of both parties.
The agreement is effective and legally binding on the parties.
Problems are introduced.
Case 2: the Supreme People’s Court (2020) supreme law min Shen No.
In all kinds of contract disputes arising from construction projects, the employer and the contractor often encounter the problem of promising to transfer profits (or floating downward or donation).
If the employer claims to transfer profits, it will not be supported.
When the contract was signed in 2013, the project was about to be completed, which was obviously not a contract actually performed.
The rights and obligations of both parties should be determined in accordance with the construction contract of construction project signed on September 8, 2010.
1、 Order the higher people’s Court of Henan Province to retry the case; 2、 During the retrial, the execution of the original judgment shall be suspended.
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In addition to the winning contract, the tenderee and the winning bidder sign a separate contract for the purchase of contracted real estate, free construction of housing supporting facilities, transfer of profits, donation of property to the construction unit, etc., which reduces the project price in a disguised form.
Therefore, the project price of this case shall be determined according to the amount of profit transferred in the appraisal opinion according to the contract.
Although the contract is invalid, the conditions for paying the project price have been met.
This paper will discuss and analyze them in combination with actual cases and court judgment opinions.
Article 2 of the relevant provisions 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): if the project scope, construction period, project quality, project price and other substantive contents agreed in the construction contract of construction projects separately signed by the tenderee and the bid winner are inconsistent with the bid winning contract, and one party requests to determine the rights and obligations in accordance with the bid winning contract, the people’s court shall support it.
The judgment of the first instance admitted that the amount of the project price without profit transfer did not comply with the provisions of the law and should be corrected.
The essence of black-and-white contract disputes is the conflict and choice between legal mandatory provisions and party autonomy.
The judgment of first instance found that the contract was invalid and in line with the legal provisions.
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In other words, only black-and-white contract disputes, there is a dispute over the transfer of profits.
Typical case 1: Henan Higher People’s Court (2018) yuminzhong No.
Such cases have always been controversial.
Although the profit transfer clause is the true intention of the parties, it is invalid if it changes the substantive content of the bid winning contract.
In this case, the construction project involved in the case has been completed and accepted.
The agreement is not intended to overhead or evade the mandatory provisions of the bidding law, but an institutional arrangement made to deal with disputes based on the actual situation of contract performance.
In practice, the phenomenon that the contractor promises to transfer profits (floating downward and donation) should be interpreted in the framework of black-and-white contract disputes.
