Since the enterprise management fee has nothing to do with the qualification of the actual constructor, and pan Chuanjin has carried out specific project management during the construction process, the management fee should not be deducted from the project price due to pan Chuanjin.
As for the profit, as the construction party, pan Chuanjin’s labor and materials have been materialized in the overall value of the construction project.
Referee’s opinion: in this case, the “construction contract of construction project” on September 5, 2010 does not include fire engineering, and the first instance appraisal opinion does not include the cost of fire engineering.
According to the specific circumstances of the case, the affiliated person generally has no right to directly claim rights from the employer, which is different from the rights of the subcontractor in the subcontracting relationship..
If this part of profit is left to the second company of China Railway 12th Bureau, it will be based on the same invalid contract, The second company of China Railway 12th Bureau will obtain more illegal benefits, which is contrary to the basic principle of fairness and rationality of the contract, so the profits should not be deducted from the project price due to pan Chuanjin—— Case index: (2021) Supreme FA min Zhong No.
Click on the top of Guoji Beijing law firm to follow us 1 Enterprise management fees, fees and profits shall not be deducted from the indirect costs of the project price due to the actual constructor.
Article 7 of the administrative measures for the identification, investigation and punishment of illegal acts of construction contracting and contracting of construction projects issued by the Ministry of housing and urban rural development stipulates: “subcontracting in these Measures refers to the act that the Contractor fails to perform the responsibilities and obligations agreed in the contract after contracting the project, and transfers all the contracted projects or dismembers all the contracted projects to other units or individuals for construction in the name of subcontracting.” It can be seen that in the subcontracting relationship, for the employer, the subcontractor appears as the opposite party of the contract.
If Wang Guoqing fails to complete the obligation of proof, he should bear the adverse consequences of failing to provide evidence according to law—— Case index: (2021) Supreme faminzai No.
The party who borrows the qualification, that is, the affiliated person, directly contacts with the employer, and participates in the whole process of bidding, contract signing and construction.
412 2 The actual constructor has the burden of proof for the construction of the project involved in the case, and needs to provide core objective evidence such as project visa or project handover and acceptance procedures.
In the latter case, the legal and judicial interpretation does not give the affiliated person the ability to break through the principle of contract relativity.
The steel construction company was only nominal and posted, and Zunyi development investment company and Luo Shangxiong established a de facto construction contract relationship.
In addition to claiming rights from the subcontractor according to the contractual relationship, the subcontractor can also break through the relativity provisions of the contract according to the relevant judicial interpretation and directly claim corresponding rights from the employer.
After undertaking the project, it transfers all the project to other main bodies for construction, but it does not break away from this contract chain relationship, and it is still a part of the construction project chain contract.
In the former case, although the construction contract of the construction project is nominally affiliated, in essence, the affiliated person has established a de facto contractual relationship with the employer.
46 3 In the case that the employer does not know the affiliated person, the affiliated person generally has no right to directly claim rights against the employer over the affiliated person.
Article 9 of the above-mentioned administrative measures of the Ministry of housing and urban rural development also stipulates: “the affiliation referred to in these Measures refers to the behavior of units or individuals contracting projects in the name of other qualified construction units.
In practice, affiliation can be divided into two situations: the employer knows and does not know.
Zunyi development investment company was clear about Luo Shangxiong’s behavior of borrowing the qualification, and was indulgent and pursuing it.
Because the project involved in the case was constructed by the workers organized by Pan Chuanjin, the five insurances and one fund involved should be borne by Pan Chuanjin, so the fees should not be deducted from the project price due to pan Chuanjin.
Referee’s opinion: the appraisal opinion of Huakun consulting Jiajian (2019) No.
Referee’s opinion: the steel construction company claimed that the project involved in the case was Luo Shangxiong’s negotiation with Zunyi development investment company in advance, and then he asked the steel construction company to borrow the qualification.
Under the condition that the project completed by Pan Chuanjin does not have quality problems, the contract purpose of the second company of China Railway 12th Bureau has been achieved, and the profit is the corresponding consideration that pan Chuanjin should obtain.
The fees, which are required to be paid by the government and relevant authorities, include the five insurances and one fund paid for the employees and the pollution discharge fee of the construction site project as required.
2 states that the indirect fee of 868820 yuan includes the enterprise management fee, fees and profits.
According to the principle of contract relativity, the affiliated person cannot have a substantial impact on the construction behavior of the affiliated person, and the specific work in the construction process is often directly contacted with the employer by the affiliated person over the affiliated person.
In this case, Wang Guoqing did not provide core objective evidence such as the fire engineering visa or the fire engineering handover and acceptance procedures, and the evidence he submitted failed to reach the high possibility of directly proving or indirectly forming a chain to prove his claim.
The court believes that the sub contractor in the subcontracting relationship (i.e.
As the plaintiff, Wang Guoqing claimed that the actual construction of the fire-fighting project should bear the burden of proof for the “existence of legal relationship” of the fire-fighting project involved in the case, and should meet the standard of “high possibility”.
In the actual construction process, the subcontractor, as a transit link, has a strong management and dominant position in the project.
The contracting projects referred to in the preceding paragraph include participation in bidding, conclusion of contracts, handling relevant construction procedures, engaging in construction and other activities.” Generally speaking, in the construction affiliated relationship, the party who lends the qualification, that is, the affiliated person, does not actually participate in the construction of the project.
the actual construction subject who establishes a contractual relationship with the Contractor) and the affiliated in the affiliated relationship can be the actual constructor, but the legal effects of the two are not exactly the same, so only by distinguishing different types of actual constructors, can the law be accurately applied and the rights and obligations of the parties be determined.
The employer carries out construction instructions, progress payment and other work through the subcontractor, while the subcontractor, as the actual constructor, carries out reporting work quantities, project progress and other work through the subcontractor.
