Huang Jianguo’s application to the court of first instance: 1 Confirm that the construction contract of construction project and relevant supplementary agreements signed on October 19, 2010 are invalid; Confirm that the internal contract agreement for project construction and relevant supplementary agreements signed on January 8, 2011 are invalid; The settlement agreement signed on January 17, 2017 by Dongfang Road Company for the settlement of the plot of Huangxing temple in Songshan District is invalid; 2.
2.
When the employer has paid the project funds to the affiliated person, the affiliated person shall pay the project funds to the actual constructor on the next day after receiving the funds, and take this as the basis to determine the starting time of interest on the project funds involved in the case.
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Order Dongfang company and Yaxing company to bear all litigation costs of this case..
[settlement subject and rights under affiliated construction relationship] in the case of affiliated, the affiliated person is the opposite party signing the contract with the employer and the subject of settling the project price with the employer.
The request of the affiliated person for the actual constructor to pay the management fee according to a certain proportion of the project price involved in the case lacks legal basis and is not supported.
[settlement effect under affiliated construction relationship] although the construction contract of construction project is invalid because the employer has not obtained the planning approval procedures such as construction project planning license and is essentially signed by the actual constructor borrowing the qualification of construction enterprise, the construction project quality is qualified, and the project price can be settled with reference to the contract.
Case summary 1.
[the affiliated person has no right to charge management fee] the act of borrowing qualification in the field of construction engineering violates the mandatory provisions of the law.
3.
[treatment of loan and interest from the affiliated party] the affiliated party “borrows” from the affiliated party, which is used for project construction.
The management fee agreed between the affiliated person and the affiliated person is actually the consideration paid by the actual constructor for borrowing the qualification.
[starting time of interest on project funds] the affiliated party shall timely pay to the actual constructor after receiving the project funds paid by the employer.
[sharing of responsibility for tax related punishment] the notification of administrative punishment matters of the tax authorities and the decision of tax administrative punishment provided by the affiliated person show that the inspection and punishment of their own tax related situation by the relationship between the tax authorities is not a special punishment for the tax related illegal facts in the project involved in the contract case of the affiliated person, Moreover, the tax inspection amount shown in the advance payment details submitted by the affiliated person is also inconsistent with the total amount of taxes, overdue fines and fines recovered in the decision on tax administrative punishment.
Order Dongfang company and Yaxing company to pay interest to Huang Jianguo from January 21, 2014 to the date when the unpaid project funds are actually paid (the interest is based on the amount of unpaid project funds and calculated according to the interest rate of similar loans in the same period issued by the people’s Bank of China, temporarily totaling 50000 yuan); 4.
On January 8, 2011, Dongfang company (Party A) and Huang Jianguo (Party B) signed the internal contracting agreement for project construction, which contracted the project of Yaxing company to Huang Jianguo for the reasons of implementing effective internal economic responsibility system, project contracting responsibility system and enterprise target management.
Order Dongfang company and Yaxing company to bear the losses such as shutdown and slowdown (the specific amount shall be subject to the appraisal amount), with a provisional amount of 50000 yuan; 5.
When the affiliated party owes the actual construction labor cost, it also claims that the interest of the “loan” should be borne by the actual construction party, which lacks factual and legal basis.
Huang Jianguo said that the project involved in the case was actually undertaken by him, which was recognized by Dongfang company.
3.
When the employer and the contractor have settled and paid the project price, its application for the determination of the project price and the loss of shutdown and slowdown is not in line with the provisions of Article 12 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 (II), There is no legal basis for requesting the employer to pay the project payment and the loss of work stoppage and slowdown, and the court will not support it.
Even if the decision on tax administrative punishment contains the tax related illegal facts in the project involved in the case, because the affiliated person is the subject of withholding and paying taxes, the employer also pays the project funds to him, and the consequences of failing to pay taxes in accordance with the regulations shall be borne by himself, The affiliated person claims that the actual constructor shall bear the tax inspection payment.
According to this, the court can determine that the relationship between the two is: in essence, the unqualified actual constructor borrows the name of a qualified construction enterprise to construct the construction project, and the two form an illegal affiliated relationship.
Order Dongfang company and Yaxing company to pay the remaining project funds to Huang Jianguo (the specific amount shall be subject to the appraisal conclusion), temporarily totaling 100050000 yuan; 3.
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The project involved in the case has passed the completion acceptance and handed over to the owner for use.
4.
On October 19, 2010, Yaxing company (Party A) and Dongfang company (Party B) signed the construction contract of construction project; 2.
The actual constructor is not the subject of settling the project payment with the employer, nor is it the subject who can directly request the employer to pay the project payment.
Insufficient basis, not supported.
As the affiliated person, the project settlement agreement has been signed with the employer to settle the project price; As an affiliated person, it is required to settle the project price again, which has no legal basis.
Since April 1, 2011, the projects involved in the case have been started successively.
How to identify the affiliation of practical issues? Can the affiliated actual constructor directly claim the project payment from the employer? Who has the right to settle accounts with the employer under the affiliated construction relationship? Does the affiliated person have the right to charge management fees from the affiliated person? How to determine the starting time of the project fund interest owed by the affiliated person to the affiliated person? Referee opinion 1 [identification of affiliated relationship] the affiliated person recognizes that it is a borrowing qualification relationship with the actual constructor, and has not submitted evidence to prove that it has signed a labor contract or paid wages to the actual constructor.
