If this part of profits is left to China Railway 12th Bureau 2 Co., Ltd., it will be based on the same invalid contract, The Second Company of China Railway 12th Bureau will obtain more illegal benefits, which violates the basic principle of fairness and reasonableness of the contract, so the profits should not be deducted from the project price due to Pan Chuanjin – Case No.: (2021) No.
the actual construction subject establishing the contract relationship with the contractor) and the affiliated person in the affiliated relationship can both be the actual construction person, but the legal effects of the two are not exactly the same, so only by distinguishing different types of actual construction persons can the law be accurately applied and the rights and obligations of the parties be determined.
Zunyi Development and Investment Corporation is clear about Luo Shangxiong’s behavior of borrowing the qualification, and it is laissez-faire and pursuit.
Judges’ point of view: In this case, the Construction Contract of Construction Projects on September 5, 2010 does not include fire protection works, and the appraisal opinions of the first instance also do not include fire protection project costs.
1 The enterprise management fee, regulation fee and profit shall not be deducted from the indirect cost of the project price due to the actual constructor.
Since the project involved is organized by Pan Chuanjin, the five insurances and one fund involved should be borne by Pan Chuanjin, the fees should not be deducted from the project price due to Pan Chuanjin.
As the plaintiff, Wang Guoqing claimed that the actual construction of the fire protection project should bear the burden of proof for the “existence of legal relationship” of the fire protection project involved in the case, and should meet the “high possibility” standard.
The actual constructor has the obligation to prove that the project involved was constructed by him, and needs to provide core objective evidence such as project visa form or project handover and acceptance procedures.
According to the specific situation of the case, the affiliated person generally has no right to claim rights directly from the Employer, which is different from the rights of the subcontractor in the subcontracting relationship.
.
CSCEC is only nominating and posting, and Zunyi Development and Investment Corporation and Luo Shangxiong establish a de facto construction contract relationship.
The Employer carries out construction instructions, progress payment and other work through subcontractors, and the subcontractor, as the actual constructor, carries out reporting work quantities, project progress and other work through subcontractors.
Article 7 of the Administrative Measures for the Identification, Investigation and Punishment of Illegal Acts of Contract Issuing and Contracting of Construction Projects issued by the Ministry of Housing and Urban-Rural Development stipulates: “Subcontracting referred to in these Measures refers to the behavior of the contractor who, after contracting the project, fails to perform the responsibilities and obligations agreed in the contract, 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, and after undertaking the project itself, it transfers the whole project to other main bodies for construction, but it does not break away from this contract chain relationship, and is still part of the construction project chain contract.
has been realized, and the profits are the corresponding consideration that Pan Chuanjin should obtain.
2 states that the indirect cost of 868820 yuan includes enterprise management fees, fees and profits.
The subcontractor can not only claim rights from the subcontractor according to the contract relationship, but also break through the contract relativity provisions according to the relevant judicial interpretation and directly claim corresponding rights from the employer.
In the absence of quality problems in the project completed by Pan Chuanjin, the contract purpose of China Railway 12th Bureau 2 Co., Ltd.
The Institute believes that the sub-contractor in the sub-contract relationship (i.e.
In the actual construction process, the subcontractor, as the transfer link, has a strong management and dominant position on the project.
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.
According to the principle of relativity of the contract, 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 carried out by the affiliated person over the affiliated person and directly contact the Employer.
412 of the Supreme People’s Court of Civil Affairs of the People’s Republic of China.
46 3 In the case that the Employer does not know the affiliated person, the affiliated person generally has no right to claim rights directly from 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.
Judges’ opinions: The appraisal opinion of HKCJJ (2019) No.
In this case, Wang Guoqing did not provide core objective evidence such as fire engineering visa form or fire engineering handover and acceptance procedures, and the evidence submitted by him failed to reach the high possibility of directly proving or indirectly forming a chain to prove his claim.
The party who borrows the qualification, that is, the affiliated person and the employer directly contact each other, and participate in the bidding, contract signing and construction throughout the process.
In practice, affiliation can be divided into two situations: the employer knows and does not know.
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 construction site project sewage charges paid according to the regulations.
Wang Guoqing failed to complete the burden of proof and should bear the adverse consequences of failing to provide evidence according to law—— Case No.: (2021) Supreme Court of Civil Affairs No.
In the latter case, the law and judicial interpretation do not give the affiliated person the right to break through the principle of contract relativity.
Judging point of view: CSCEC claims that the project involved in the case is Luo Shangxiong’s negotiation with Zunyi Development and Investment Corporation in advance before he can borrow the qualification from CSCEC.
As for profits, Pan Chuanjin, as the construction party, has materialized its labor and materials in the overall value of the construction project.
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.
The contracted projects referred to in the preceding paragraph include participating in bidding, concluding contracts, handling relevant construction procedures, engaging in construction and other activities.” Generally speaking, in the construction affiliation relationship, The party who lends the qualification, that is, the affiliated person, does not actually participate in the construction of the project.
