The agreement of affiliation or similar nature signed between the actual constructor and the construction enterprise with borrowed qualification for construction matters with borrowed qualification, namely the so-called internal legal relationship, shall be invalid according to law; However, if the actual constructor borrows the qualification of the affiliated person and the contract letting party sign an agreement on the construction of the construction project, that is, whether the external legal relationship is invalid, it needs to be reviewed and judged according to whether the contract letting party knows or should know about the actual constructor’s borrowing of the qualification to contract the project; If the Employer knows or should know, the signed agreement is invalid, otherwise, the agreement is valid.
The validity of the contract signed by the actual constructor who borrowed the qualification with the counterpart in the name of the borrower shall be determined by whether the counterpart of the contract should know or knew it.
In this regard, the agreement of affiliation or similar nature signed between the actual constructor and the construction enterprise with borrowed qualification for construction matters with borrowed qualification, namely the so-called internal legal relationship, shall be invalid according to law; However, if the actual constructor borrows the qualification of the affiliated person and the contract letting party sign an agreement on the construction of the construction project, that is, whether the external legal relationship is invalid, it needs to be reviewed and judged according to whether the contract letting party knows or should know about the actual constructor’s borrowing of the qualification to contract the project; If the Employer knows or should know, the signed agreement is invalid, otherwise, the agreement is valid.
” Article 4 stipulates: “The contractor illegally subcontracts or illegally subcontracts the construction project, or the unqualified actual constructor borrows the name of a qualified construction enterprise to sign a construction project contract with others is invalid.
（1） Regarding the validity of the Engineering Construction Contract signed between Huabang Construction Investment Company and China Railway Corporation, the original Article 1 of the Interpretation of the Supreme People’s Court on the Application of Law to the Trial of Disputes over Construction Contracts (implemented in 2005) stipulates that “a construction contract for a construction project shall be deemed invalid in accordance with Article 52 (5) of the Contract Law in any of the following circumstances: (1) The contractor has not obtained the qualification of a construction enterprise or has exceeded the qualification level; （2） The unqualified actual constructor borrows the name of a qualified construction enterprise; （3） The bid for a construction project must be invited, but the bid is not invited or the bid is invalid.
There is no evidence to prove that Huabang Construction Investment Company knows or should know the fact that Zhongyuan Rail Transit Company, as the actual constructor, is affiliated with China Railway Corporation for bidding and signing a contract..
Whether the Engineering Construction Contract signed by Huabang Construction Investment Company and China Railway Corporation is valid; 2.
Whether there is a factual and legal basis for Huabang Construction Investment Company to appeal to China Railway Corporation for payment of liquidated damages and losses.
(the former Western Zhongda Construction Group Co., Ltd., hereinafter referred to as Huabang Construction Investment Company) Appellant (defendant in the original trial): China Railway Co., Ltd, The focus of dispute in the second instance of this case is: 1.
Case No.:, It does not involve whether the signing behavior of the contract counterpart is effective.
The “unqualified actual constructor”, as an actor who borrows the qualification of others to sign a contract with the counterpart, is invalid only if both parties have a common false declaration of intent, that is, the counterpart must know or should know that the actual constructor has no qualification and borrow the qualification of others to sign a contract.
Based on the facts contained in the above evidentiary materials and other relevant facts, Zhongyuan Rail Transit Corporation, through the Second Company of China Railway Shanghai Bureau, borrowed the qualification of China Railway Corporation for bidding, and signed the Engineering Construction Contract with Huabang Construction Investment Corporation in the name of China Railway Corporation after winning the bid, specifically responsible for the construction of the fourth contract section of the project involved, which is the act of Zhongyuan Rail Transit Corporation to borrow the qualification of China Railway Corporation for construction projects, The basic facts are clear, which do not belong to re subcontracting or illegal subcontracting.
According to Article 146 of the original General Principles of the Civil Law of the People’s Republic of China (implemented in 2017), “civil legal acts performed by the actor and the counterpart with a false declaration of intent are invalid.
The validity of civil legal acts concealed with a false declaration of intent shall be handled in accordance with relevant laws”, “unqualified actual constructors”, as the actor, borrow other’s qualifications to sign a contract with the counterpart, Only if both parties have a common false declaration of intent, the signed agreement is invalid, that is, the counterpart must know or should know that the actual constructor has no qualifications and borrow others’ qualifications to sign with him.
In this case, on March 1, 2011, the Second Company of China Railway Shanghai Bureau signed the Pre bid Agreement with Zhongyuan Rail Transit Corporation; On March 18, 2011, Huabang Construction Investment Company issued the Notification of Award to China Railway Corporation, and then both parties signed the Engineering Construction Contract.
[Judgment] Appellant (plaintiff in the original trial): Huabang Construction Investment Group Co., Ltd.
The people’s court may, in accordance with Article 134 of the General Principles of the Civil Law, confiscate the illegal income obtained by the parties.” Therefore, the invalidity of the contract signed by borrowing qualification is a legal evaluation of the borrowing qualification behavior of “unqualified actual constructors”, and does not involve the validity of the signing behavior of the contract counterpart.
Huabang Construction Investment Company subcontracted the fourth contract section of the project involved to China Railway Corporation for construction, which was approved by Guihe Corporation; On March 24, 2011, the Second Company of China Railway Shanghai Bureau signed the Internal Construction Contract with Zhongyuan Rail Transit Corporation; On March 31, 2011, China Railway Corporation issued the Notice on Establishing the Project Management Department of Contract Section IV of Guilai Expressway Project of China Railway Corporation.
2.
