On april20,2015, the court of first instance, based on the application of Qin Jianzhen, Weiqiang and hanxinping, entrusted the appraisal unit to appraise the project price involved completed by Qin Jianzhen, Weiqiang and hanxinping.
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The project supervision unit involved in the case allowed Shengyuan company to start construction on may8,2011.
295 judgment point of view in the case that the contractor has no objection to the identity of the actual constructor, and the employer has also known the existence of the actual constructor, the employer shall settle accounts with the contractor with the approval of the actual constructor.
On November 26, 2014, Qin Jianzhen, Wei Qiang and Xujing chongshengyuan project headquarters of Xinghuo company signed the construction content on the completed quantities.
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Otherwise, the total project cost determined by the settlement between the employer and the contractor cannot restrict the actual constructor.
The letter of responsibility for management by objectives of construction projects signed on December 21, 2011 and the agreement signed on August 28, 2015 between Shengyuan company and Qin Jianzhen indicate that Qin Jianzhen and other three people independently construct the project involved in the case in the name of the project Department of Shengyuan company, assume their own profits and losses, and bear their own risks.
On December 19, 2016, Xinghuo company and Shengyuan company jointly confirmed that the second project of Xujing Chongsheng garden, 9\11\and underground garage and Commerce had been completed and accepted in 2013, all project funds had been settled, and there was no economic dispute between the two parties.
if the contractor and the employer have settled and confirmed that the project funds have been settled, is the settlement agreement binding on the actual constructor? 3.
Even if the settlement between the employer and the contractor confirms that the employer has settled the project funds, and the project cost confirmed by the actual constructor through judicial appraisal is higher than the above amount, the employer shall still bear the payment responsibility to the actual constructor within the scope of the outstanding project funds.
Under the condition that Shengyuan company has no objection that Qin Jianzhen and other three persons are the actual constructors, Xinghuo company shall settle accounts with Shengyuan company with the approval of the actual constructors.
On January 16, 2014, Xinghuo company and Shengyuan company signed the project final account review letter on the 11\building of Xujing Chongsheng Park, in which both parties confirmed the approved cost of the 11\building.
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during the trial of this case, Qin Jianzhen, Wei Qiang and hanxinping claimed that the settlement of Shengyuan company and Xinghuo company’s malicious collusion to damage the legitimate rights and interests of Qin Jianzhen, Wei Qiang and hanxinping should be invalid.
On July 13, 2010, Qin Jianzhen paid a deposit of 500000 yuan for Xujing chongshengyuan community project to Shengyuan company.
In combination with this case, Qin Jianzhen and other three persons filed a lawsuit as the actual constructor on december26,2013, requesting Xinghuo to order Xinghuo to pay the project funds owed to them.
Source: construction real estate law circle official account 1 In the case of subcontracting, if the actual constructor does not have a project contracting relationship with the employer, nor does it form a factual construction contract relationship, does it have the right to directly settle the project with the employer? 2.
Summary of case 1.
if the actual constructor does not recognize the aforesaid settlement agreement, does he have the right to apply for appraisal to determine the project cost? Case index civil judgment on Retrial of disputes over construction contracts of Qin Jianzhen and Wei Qiang construction projects (2019) Supreme faminzai No.
The reason for the decision was whether Xinghuo should pay the project funds to Qin Jianzhen and other three persons.
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On December 21, 2011, the Northwest Branch of Shengyuan company, the trustor, signed the letter of responsibility for construction project objective management with Qin Jianzhen, Wei Qiang and hanxinping, the trustees (responsible persons), on the 9\building of Xujing chongshengyuan, agreeing to carry out independent construction, assume sole responsibility for profits and losses and bear their own risks.
However, when the ruling of the court of first instance rejecting the lawsuit has not yet taken effect and the proceedings have not yet been concluded, Xinghuo company has settled with Shengyuan company at the price of 39.27491118 million yuan and jointly confirmed that all the project funds have been settled after knowing that the project funds determined by the appraisal entrusted by the court of first instance were 46.4919595 million yuan and without notifying Qin Jianzhen and other three persons.
in addition, on December 26, 2013, Qin Jianzhen, Wei Qiang and hanxinping filed a lawsuit against Xinghuo company.
Therefore, at the latest, Xinghuo company should clearly know that Qin Jianzhen and other three people are the actual constructors of the project involved in the case, and Shengyuan company is only the nominal contractor.
Shengyuan company basically does not participate in the specific construction except for charging a fixed proportion of management fees, Qin Jianzhen and other three persons are the actual constructors of the project involved in the case.
Considering the above situation, the court believes that the total project cost determined by Xinghuo company and Shengyuan company in the settlement can not restrict the actual constructor Qin Jianzhen and other three persons.
On october23,2015, when the court of first instance of this case organized cross examination on the agreement, Xinghuo company had known the contents of the agreement on construction project objective management responsibility signed by Qin Jianzhen and other three people and Shengyuan company.
Therefore, it can not be determined that Xinghuo company has settled all the project funds involved in the case, and Xinghuo company should still bear the payment responsibility to the actual constructor within the scope of outstanding project funds…
On September 18, 2010, Xinghuo company and Shengyuan company signed the construction project construction contract, which agreed that Xinghuo company would contract out the construction of buildings 9 and 11 of Xujing Chongsheng park to Shengyuan company for construction.
