（2） There is no so-called “bid winning contract” for the project involved in the case.
The claim of China Construction Second Engineering Group Co., Ltd.
The bidding document submitted by China Construction Second Engineering Bureau is different from the construction contract involved in the case in terms of liability for breach of contract..
This case should not be judged in advance on the issue of termination of the contract.
（3） The construction contract involved in the case was terminated because the contract could not be actually performed.
(hereinafter referred to as “Tian’an Jingu Company”).
The original judgment found that Tianan Jinggu had the right to unilaterally terminate the contract.
The reasons for applying for retrial by China Construction Second Engineering Bureau go beyond the scope of the first judgment.
The Court has formed a collegial panel to conduct review according to law, and the review has now been completed.
251, Beiyangwa, Liyuan Town, Tongzhou District, Beijing.
The court of second instance, without conducting a detailed hearing on the breach of contract between both parties, generally determined that all the liabilities for breach of contract were borne by China Construction Second Engineering Group Co., Ltd., which deprived China Construction Second Engineering Group Co., Ltd.
The standard terms such as 16.1.1 and 16.2.3 of the Special Conditions of Contract have significantly changed the bidding documents, relieved Tianan Jinggu Company from its liability for breach of contract, increased the liability of China Construction Second Engineering Group Co., Ltd., and excluded the main rights of China Construction Second Engineering Group Co., Ltd.
Tianan Jingu Company submitted its opinion that: (1) the project involved in the case was put on hold due to the suspension of the project due to the breach of contract of China Construction Second Engineering Bureau, and the court of first instance made a correct and timely judgment in advance to avoid the expansion of losses.
Entrusted litigation agent: Jiang Shuo, lawyer of Beijing Haotianxinhe Law Firm.
China Construction Second Engineering Bureau has been handed over and removed from the site, and the subsequent general contractor has been replaced.
Entrusted litigation agent: Xu Weiming, lawyer of Shanghai Baihui Law Firm.
1.
The corresponding terms should be invalid.
Tianan Jinggu Company did not hand over all construction contents to China Construction Second Engineering Bureau according to the bidding documents, but divided the project into several parts and contracted them to subcontractors, which violated the mandatory provisions of laws and regulations.
Welcome to click the blue text above to follow! Civil Ruling of the Supreme People’s Court of the People’s Republic of China (2021) Supreme Famin Shen No.
According to the agreement of both parties on the scope of project contracting, some non main works are subcontracted by Tianan Jinggu Company.
China Construction Second Engineering Bureau applied for retrial and said that the case was in conformity with the provisions of Article 200, Items 1, 2 and 6 of the Civil Procedure Law of the People’s Republic of China and should be retried.
2.
The scope of retrial review of the first judgment in this case should be limited to the content of the first judgment, not including the subsequent judgment.
China Construction Second Engineering Bureau argues that the construction contract involved in the case deviates from the substantive content of the bidding documents, and the bidding documents should be used as the basis for determining the settlement and liability for breach of contract of both parties in this case.
To sum up, it is requested to reject the retrial application of China Construction Second Engineering Bureau.
The main facts and reasons are as follows: (1) The court of first instance made an advance judgment without finding out that there were many substantive clauses and breach clauses in the EPC Construction Contract (hereinafter referred to as the construction contract) signed between the bidding document of the project involved in the case and China Construction Second Engineering Bureau and Tianan Jinggu Company, and the basic facts of the case were unclear.
595 Civil Judgment and applied to this court for retrial because of the case of dispute over the construction contract between the applicant and the respondent, Shanghai Tian’an Jingu Science Park Enterprise Development Co., Ltd.
The construction contract involved in the case is a standard contract provided by Tianan Jinggu Company.
of its legitimate rights and interests, leading to the loss of legal relief channels for China Construction Second Engineering Group Co., Ltd.
The loss of construction period delay is caused by the subcontractor designated by Tian An Jingu Company.
The construction contract involved in the case deviates from the substantive content of the bidding document, and the bidding document should be used as the basis for determining the project price settlement and liability for breach of contract in this case.
The applicant of retrial, China Construction Second Engineering Bureau Co., Ltd.
2.
（3） In the first and second instance, China Construction Second Engineering Bureau did not recognize the fact that it had suspended work, and its application for retrial claimed that it had the right to suspend work, which was contradictory.
is due to the exercise of the right of first performance defense.
1.
Tian An Jingu Company does not have the right to unilaterally terminate the contract for the suspension under this situation, and the provisions of 16.1.1 of the special conditions of the construction contract are not applicable.
Legal representative: Song Zengbin, the chairman of the company.
The suspension of China Construction Second Engineering Group Co., Ltd.
5098 retrial applicant (first instance defendant, counterclaim plaintiff, second instance appellant): China Construction Second Engineering Bureau Co., Ltd., located at No.
（2） The contract basis of the project involved in the case should be the bidding documents.
Legal representative: Shi Yu, chairman of the company.
Entrusted litigation agent: Qian Yiliang, lawyer of Shanghai Baihui Law Firm.
Entrusted litigation agent: Yang Yang, lawyer of Beijing Haotianxinhe Law Firm.
The two parties involved in the case only signed a construction contract, which is legal and valid, consistent with the substance of the bidding documents, and has been filed.
The original court took the construction contract as the basis of identification error, and the construction contract involved in the case should be invalid.
（4） The court of first instance confirmed the date and reason of the termination of the contract through the first judgment, which is essentially the determination of the liability of both parties for breach of contract, which is beyond the reasonable scope of the first judgment.
After examination, our institute believes that: (I) the validity of the construction contract involved in the case.
China Construction Second Engineering Bureau applied for retrial of the newly submitted notarial certificate Evidence materials such as the Professional Subcontracting Contract for Pile Foundation Works, the Appraisal Report on the Claim Costs of Tian’an Jingu Phase I Project, and the Appraisal Report on the Visa and Change Costs of Tian’an Jingu Phase I Project prove that the reason why China Construction Second Engineering Bureau requires Tian’an Jingu Company to pay relevant costs is correct.
301, Rongle East Road, Songjiang District, Shanghai.
The breach clause in the construction contract in this case is in the special clause, which reflects the true meaning of the parties, not the standard clause.
(hereinafter referred to as “China Construction Second Engineering Bureau”), disagreed with the Shanghai Higher People’s Court (2020) Humin Zhong No.
that the construction contract involved in the case is invalid because Tianan Jinggu Company dismembers the construction project lacks facts and legal basis.
The respondent (the plaintiff in the first instance, the defendant in the counterclaim, and the respondent in the second instance): Shanghai Tian’an Jingu Science Park Enterprise Development Co., Ltd., located at No.
The project involved in the case is generally contracted by China Construction Second Engineering Group Co., Ltd.
