The court ruled that the Guizhou Provincial High Court held that: (1) it was the validity of the three Labor Contracts for Equipment, Peripheral Materials and Auxiliary Materials.
If the project department exceeds the payment period of the project progress payment, the project department and the two labor companies shall negotiate to solve the problem, and the interest shall be calculated at the monthly rate of 3% of the project progress payment as compensation.
The project department shall pay the project progress payment within one month from the date of payment.
The compensation for the above price shall be paid at the time of project settlement between Party A and Party B.
However, it encountered another shutdown and resumption of work until Wanfeng Company exited.
In addition, the project settlement table of the project involved indicated that the total construction price of the building area was 35376981.9 yuan, and the appraised project price in the case of construction contract dispute between the owner Kaiyuan Company and Chengjiang Company, which was heard by the court of second instance, was 103935238.23 yuan.
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From the content of the Labor Contract for Equipment, Peripheral Materials and Auxiliary Materials signed between Chengjiang Company and Wanfeng Company, The contracted contents include “cushion, brick formwork, reinforcement, concrete, (excluding foundation earthwork), main structure, building, general indoor decoration, ground and roof”, and the specific sub-divisional works include “concrete works, reinforcement works, formwork works, prefabricated components, brick masonry, floor, wall column plastering, external frame and protection”, and the contract lump sum unit price is 450 yuan per square meter, The contract price includes: labor cost (including operation labor cost, auxiliary labor cost, labor protection articles); Material cost (including revolving material cost and auxiliary material cost); Machinery cost (machinery labor cost, machinery lease cost or purchase cost); Other direct costs; management expense; insurance premium; Safe and civilized construction cost; Taxes.
According to the provisions of Article 98 of the Contract Law of the People’s Republic of China, “the termination of the rights and obligations of the contract does not affect the validity of the settlement and clearing clauses in the contract.” Although the Labor Contract for Equipment, Peripheral Materials and Auxiliary Materials is invalid, it does not affect the validity of the settlement and clearing clauses.
The court of second instance held that labor subcontracting refers to the behavior of the general contractor or professional contractor of the construction project to contract the labor operations in its contracted project to the labor operation contractor with corresponding labor qualification to complete.
On November 25, 2014, Chengjiang Company and Wanfeng Company signed a supplementary contract for the labor service of equipment, peripheral materials and auxiliary materials, and Chengjiang Company subcontracted the labor service of the comprehensive building of Kaiyuan Jiade City Square in Guizhou to Wanfeng Company.
During the construction process of Wanfeng Company, the project was shut down for many times due to the reason of the construction unit Kaiyuan Company.
Later, a lawsuit was filed to the court due to the project payment dispute.
In the labor subcontracting, the labor operation contractor generally only provides labor operation, and the construction technology, main engineering materials, large machinery, equipment, etc.
On November 22, 2014, Chengjiang Company signed a Supplementary Agreement with Wanfeng Company, which stated that before November 22, 2014, the project department of Chengjiang Company failed to pay the project progress payment confirmed by the project department according to the contract, which caused certain economic losses to the two labor companies, and the project department compensated the two labor companies with 300000 yuan each; Compensation standard for shutdown losses of various construction machinery, external frames, various turnover materials and salaries of management personnel of labor companies: the project department shall pay 80% of the actual loss price recognized by the construction unit to the two labor companies.
The Supreme People’s Court (2022) Supreme People’s Court (Supreme People’s Republic of China) Decision No.
Although the business scope of Wanfeng Company in this case is to engage in construction-related businesses, no evidence has been provided to prove that it has obtained the administrative license to engage in the relevant construction industry.
Since November 22, 2014, the project progress payment reported by the two labor companies, after being reviewed and signed by the project department, will be paid by the project department according to the labor contract.
On November 25, 2014, Chengjiang Company and Wanfeng Company signed the Labor Contract for Equipment, Peripheral Materials and Auxiliary Materials, and Chengjiang Company subcontracted the labor service for the resettlement house in Kaiyuan Jiade City Square, Guizhou to Wanfeng Company.
are all the responsibility of the general contractor, while the labor cost is generally settled through the unit price and the total quantity cost of the workday, without the settlement of major materials, large machinery and equipment.
Case No.
On November 5, 2013, Wanfeng Company, as Party B, and Chengjiang Company, as Party A, jointly signed the Labor Contract for Equipment, Peripheral Materials, and Auxiliary Materials.
After the signing of the Supplementary Agreement, Wanfeng Company continued its construction.
Also in accordance with the provisions of Article 143 of the General Principles of the Civil Law of the People’s Republic of China that “the civil legal act with the following conditions is valid: (1) the actor has the corresponding civil capacity; (2) the expression of intention is true; (3) it does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs”, the Supplementary Agreement in this case meets the above constitutive requirements, Therefore, it is not necessarily invalid because the Labor Contract for Equipment, Peripheral Materials and Auxiliary Materials is determined to be invalid.
204 focuses on the three “Labor Contracts for Equipment, Peripheral Materials and Auxiliary Materials”, which are determined to be invalid, but the “Supplementary Agreement” is the agreement between Chengjiang Company and Wanfeng Company on the loss of overdue payment of project progress payment within the construction scope of Wanfeng Company, the loss of shutdown, and the payment of late project progress payment, etc, The determination of the amount of losses of Wanfeng Company and the way of compensation for the losses of Chengjiang Company is the settlement and clearing clauses in the construction contract of the construction project.
