respondent (first instance defendant, counterclaim plaintiff, second instance appellant) As the employer, Minsheng Company signed the Construction Contract of Construction Projects.
According to the agreement in the Agency Construction Agreement, the investor and the entrusting party Jinfeng District Service Center entrusted Minsheng Company to advance funds for the construction of the project involved.
In this case, there is no evidence to prove that Haiyue Company and Jinfeng District Service Center have reached a relevant agreement on the project involved, or Haiyue Company has accepted the relevant rights and obligations of Jinfeng District Service Center.
1、 In the judgment of the second instance, some facts were not clearly identified and the application of law was wrong, which was corrected by the Court.
In the absence of evidence to prove that Minsheng Company failed to fulfill all the payment obligations to Dongda Company due to the reasons of Haiyue Company, Dongzhi Company’s claim that Haiyue Company should bear the payment liability according to the contract could not be established, which was not supported by the Court.
Haiyue Company has no agreement or legal obligation to pay project funds to the Contractor.
Source: Network [Disclaimer]: This public account pair.
To sum up, the existing facts of this case can not identify Haiyue Company as the actual employer of the project, but the judgment of the second instance identified it as the actual employer, which is indeed inappropriate, and the court will correct it.
According to the above agreement, even if the project funds are not paid due to the reasons of Haiyue Company, it is Minsheng Company, not Dongda Company, that Haiyue Company is responsible for breach of contract.
In the case that the Construction Contract of Construction Project stipulates that Haiyue Company is the user of the project involved in the case, and there is no evidence to prove that Haiyue Company has participated in the contract awarding and project payment of the project involved in the case, the conclusion that Haiyue Company is actually the contract letting party cannot be drawn only based on its signature on the final form.
To sum up, the original judgment held that Haiyue Company was named as the user and actually the employer of the project, without any factual basis.
Moreover, according to the facts found in the retrial, the outsider Jinfeng District Service Center has paid off the agent construction funds for the project involved in the case to Minsheng Company, which shall actively perform the payment obligations to the contractor as agreed after receiving the funds.
Reexamination applicant (first instance defendant, second instance appellant): Ningxia Haiyue Capital Operation Holding Co., Ltd.
The agent, Minsheng Company, is fully responsible for the project construction management, including organizing supervision, construction, equipment and material supply and other bidding procurement.
（2） According to Article 20.1 of the Construction Contract of the Construction Project, it is agreed whether Haiyue Company should bear the responsibility for payment to Dongzhi Company.
This article stipulates that “26.4 of the General Conditions of the Contract stipulates that the Employer shall bear the liability for breach of contract: the Employer shall pay the project fund according to the contract terms, and the Employer shall bear the liability for breach of contract if the Employer fails to pay the project fund to the Contractor on time due to the Employer’s reasons, and the User shall bear the liability for breach of contract if the Employer fails to pay the project fund to the Contractor on time due to the User’s reasons.” In combination with the defense opinions of the parties, The focus of the dispute in this case involves two aspects: first, whether Haiyue Company is the actual employer; Second, according to Article 20.1 of the Construction Contract for Construction Projects, whether Haiyue Company should bear the payment responsibility to Dongzhi Company.
Thirdly, although Haiyue Company stamped and signed at the “construction unit” in the Final Form of Capital Construction Budget (Settlement) Audit, the final form also has the signature of Minsheng Company, the agent construction unit.
respondent (first instance plaintiff, counterclaim defendant, second instance appellant): Nanjing Dongzhi Investment Management Co., Ltd.
The Letter on Matters Related to the Audit of Final Accounts of the project involved in the case issued by Jinfeng District Service Center recorded the reason for handling in the name of Haiyue Company, that is, the Jinfeng District Government took into account the later operation, financing and other matters.
The establishment of the retrial request of Haiyue Company shall be supported.
The project land involved in the case, project approval and other related procedures were handled in the name of Haiyue Company.
（1） On the question whether Haiyue Company is the actual contract letting party, first of all, Haiyue Company is not the party involved in the entrusted construction legal relationship.
It can be seen that the entrusting party of this case is Jinfeng District Service Center, and the construction agent is Minsheng Company, both of which are not Haiyue Company.
The Jinfeng District Service Center pays the construction funds in the form of land offset.
The contract clearly stipulates the obligation of the Employer to pay the project funds, but it does not stipulate that the user Haiyue Company shall undertake the payment obligation.
Secondly, the Construction Contract of Construction Project does not set any terms that reflect the rights and obligations of Haiyue Company as the Employer.
The contents of the contract involving the user Hailiao Company are mainly reflected in Article 20.1 of Part III “Special Terms” of the contract.
According to the agreement in the Construction Contract of the Construction Project that “if the Employer fails to pay the project payment to the Contractor on time due to the user’s reason, the user should bear the responsibility for breach of contract to the Employer”, the premise for Haiyue Company to bear the responsibility for breach of contract is:, Minsheng Company failed to pay the project funds to Dongda Company on time due to the reasons of Haiyue Company.
This fact is consistent with the fact that Haiyue Company is the user of the project involved in the case, but based on this fact, it can not be concluded that Haiyue Company is the actual employer and should bear the responsibility for payment of project funds.
The construction unit recorded in the Notification of Award for Yinchuan Construction Project is also Minsheng Company.
