(2) The new evidence project visa submitted in the second instance showed that GXJZ [2020] No.
The court of second instance did not determine whether the evidence submitted by the hot spring company in the second instance procedure was wrong..
Therefore, it raised the problems in the Appraisal Report in the second instance, It does not repeat the questions raised before the issuance of the Supplementary Expert Opinion in the first instance.
Legal representative: Qin Yuhua, executive director and general manager of the company.
（2） His application for retrial complies with the provision of Item 2 of Article 200 of the Civil Procedure Law of the People’s Republic of China that “the basic facts identified in the original judgment are lack of evidence” and shall be retried.
Welcome to click the blue text above to follow! The Civil Ruling of the Supreme People’s Court of the People’s Republic of China (2021) Supreme Farming Shen No.
（3） His application for retrial complies with the provision of Item 6 of Article 200 of the Civil Procedure Law of the People’s Republic of China that “there is definite error in the application of law in the original judgment or ruling”, and he shall be retried.
002 Supplementary Appraisal Opinions on the Project Cost of Building 7-14 and Underground Parking Lot in Xingfu Homeland Residential Area (hereinafter referred to as the Supplementary Appraisal Opinions) is a supplement to the Appraisal Report.
Rebar and commercial concrete are both materials provided by Party A.
2982 civil judgment and applied to this court for retrial.
1.
The court of first and second instance used different standards when determining the unit price of both (that is, the weighted average price was used to calculate the cost of concrete, and the quota unit price was used to calculate the unit price of rebar), which belongs to “the lack of evidence to prove the basic facts identified in the original judgment”, and should be retried.
The Ratings List of Happy Homeland Materials (I) and the single project visa submitted by him in the second instance procedure are new evidence, which is enough to overturn the judgment of the first instance, but the court of second instance did not identify it, which is wrong.
(hereinafter referred to as the Hot Spring Company), because of the dispute over the construction contract with the respondent Qingdao Haotong Real Estate Development Co., Ltd.
The retrial applicant Qingdao Hot Spring Construction Group Co., Ltd.
Entrusted litigation agent: Chen Shuaishuai, lawyer of Beijing Hengdu (Qingdao) Law Firm.
Legal representative: Xu Lina, executive director and general manager of the company.
1940 retrial applicant (the plaintiff in the first instance and the appellant in the second instance): Qingdao Hot Spring Construction Group Co., Ltd., located in Donggaoyu Village, Hot Spring Town, Jimo District, Qingdao, Shandong Province.
Respondent (the defendant in the first instance and the appellant in the second instance): Qingdao Haotong Real Estate Development Co., Ltd., located opposite Qingdao Technician College, Changjiang Second Road, Jimo District, Qingdao, Shandong Province.
The Court has formed a collegial panel to review the case according to law, and the review has now been completed.
1、 The court of second instance held that “it was not improper for the appraisal institution to appraise the project price according to the concession clause agreed in the Construction Contract of Construction Projects”, and then deducted the project cost of Hot Spring Company of 959187.02 yuan, which was a mistake of applicable law.
(hereinafter referred to as Haotong Company) and the original trial defendant Ji Qunzhuan, refused to accept the Shandong Higher People’s Court (hereinafter referred to as the court of second instance) (2020) Luminzhong No.
The court of second instance held that “most of the problems raised by the Hot Spring Company in the second instance on the appraisal report are the same as the problems raised before the supplementary appraisal opinion was made in the first instance, and are contrary to its intention to express no objection to the supplementary appraisal opinion”, which belongs to “the lack of evidence to prove the basic facts identified in the original judgment”, and should be retried.
The hot spring company applied for retrial, saying that (1) its application for retrial was in conformity with the provisions of Paragraph 1, Article 200 of the Civil Procedure Law of the People’s Republic of China, and should be retried.
(1) According to the new evidence “Happy Home Material Price List (I)” submitted in the second instance procedure, the concrete cost of the material supplier A should be determined according to the actual signed quantity and the price list, while the court of first and second instance made an obvious error in calculating the concrete cost of the supplier according to the quota.
For example, the court of first and second instance omitted to count and undercounted a large number of various types of horse stool bars in the “basement (garage) project”; “Waterproof works other than civil air defense works” in “Waterproof works outside the exterior wall of the basement (garage)” is not included in the cost; The quantity of “concrete foundation of tower crane” in the tower crane foundation project is less than 5.998 (10m3); Omission of “cement mortar 1:2/concrete independent foundation, composite wood formwork and wood support” project, “tower crane foundation reinforcement section” project, “manual trench excavation, ordinary soil depth within 2m” project, and “manual original soil compaction” project; The construction cost of basement (garage) 5-5 foundation (the joint with Zhongheng) is 97262.6 yuan; The project cost of “adding waterproof to the inner wall of the retaining wall of lane 2” is 7555.9 yuan; The cost of 4 out of 5 projects in 1 and 2 is 29711 yuan; 42832 yuan is not included in the project cost of “manual excavation pit with ordinary soil depth within 2m”; The project cost in Item 7 and 7-1 is RMB 10516, which is not counted and certified; The work quantity of brick wall is 16.38m3 less, and the brick quantity is 61.5m3 less; The work quantity of “waterproof tie rod” is omitted and the cost is 280972 yuan; The project quantity and cost in the 28 missing certificates are 13413 yuan; The quantity and labor cost of 29 “cast-in-situ concrete beamless full hall foundation [commercial concrete]” are not calculated and signed.
After examination, the Court believes that the focus of dispute in this case is: the court of second instance did not determine whether the evidence submitted by the hot spring company was wrong in the procedure of second instance; The Appraisal Report adopts the concession clause in the Construction Contract to determine whether the project price is correct.
GXJZ [2020] No.
2.
Defendant of the original trial: Ji Qunzhuan.
1.
The appraisal content involved does not include the cost of the projects that are undercounted or omitted in the Appraisal Report in the second instance.
Entrusted litigation agent: Sun Fu, lawyer of Beijing Hengdu (Qingdao) Law Firm.
002 “Appraisal and Consultation Report on Project Cost of Building 7-14 and Underground Parking Lot in Xingfu Homeland Residential Area” (hereinafter referred to as “Appraisal Report”) had a large number of omissions and undercalculations of project cost.
