(hereinafter referred to as CITIC company) and Liu Yonggang, the third person in the first instance (the appellee in the second instance), Apply to the court for retrial.
On December 12, 2018, the appraisal opinion issued by the judicial appraisal center of Southwest University of political science and law showed that the construction contract with a fixed total price of 90.55 million yuan was formed by copying, altering, printing and re copying on the basis of the construction contract with a contract price of 65.8 million yuan.
Legal representative: Zeng Qu, chairman of the company.
Entrusted agent ad litem: Dong cunzheng, lawyer of Beijing Tianchi Juntai (Chongqing) law firm.
01 gist of judgment generally speaking, the distinction between subcontracting and affiliation should be judged mainly from whether the actual constructor (affiliation) has participated in the activities of contracting and negotiation stages such as bidding and contract conclusion.
After finding out the amount of the construction project price owed by the employer to the subcontractor or illegal subcontractor, the people’s court shall make a judgment that the employer shall be liable to the actual construction contractor within the scope of the construction project price owed.
In conclusion, Ruichang company applies for retrial in accordance with the provisions of items 1, 2, 3 and 6 of article 200 of the Civil Procedure Law of the people’s Republic of China..
Entrusted agent ad litem: Ling Wei, lawyer of Sichuan Youdu law firm.
Legal representative: Cheng Xiaobo, general manager of the company.
The actual constructor in the subcontracting generally does not participate in bidding and conclude the general contract, and his willingness to undertake the project is generally after the signing of the general contract.
Respondent (plaintiff of first instance and appellant of second instance): Bai Deqiang, male, born on June 7, 1970, Han nationality, lives in Wuhou District, Chengdu City, Sichuan Province.
The affiliated means that the contractor lends the qualification to the actual constructor.
Entrusted agent ad litem: Xu Jiangliu, lawyer of Shanghai Jianwei (Beijing) law firm.
2.
Entrusted agent ad litem: Teng Yanping, lawyer of Chongqing hezong law firm.
The third person in the first instance and the appellee in the second instance: Liu Yonggang, male, born on October 24, 1972, Han nationality, living in Wuhou District, Chengdu City, Sichuan Province.
Entrusted agent ad litem: Zeng Yuzhen, lawyer of Chongqing hezong law firm.
Respondent (defendant of first instance and appellant of second instance): CITIC Guoan Construction Engineering Group Co., Ltd.
Based on the above facts, the construction contract price determined in the construction permit of construction project shall be determined as 65.8 million yuan.
Subcontracting means that the contractor generally transfers the rights and obligations of the project to the actual constructor after undertaking the project.
The retrial applicant Chongqing Ruichang Real Estate Co., Ltd.
The trial of this case has been concluded.
1.
The retrial applicant (defendant of the first instance and appellee of the second instance): Chongqing Ruichang Real Estate Co., Ltd., whose domicile is located in the office building of the Management Committee of Jiangnan New Area, Wanzhou District, Chongqing * *.
The affiliated person in the affiliated relationship has generally participated in the bidding and contract signing stage, and even signed the construction contract with the employer in the name of the agent or representative of the affiliated person.
Bai Deqiang is not the actual constructor of illegal subcontracting and illegal subcontracting, and has no right to claim the project payment from Ruichang company according to the provisions of this interpretation.
On July 6, 2011, Ruichang company and CITIC company jointly sealed and confirmed the notice of direct contracting of Chongqing construction project with a contract amount of 65.8 million yuan and submitted it to Chongqing Wanzhou District public resources comprehensive trading center for filing.
3.
Entrusted agent ad litem: Xu Jiangliu, lawyer of Shanghai Jianwei (Beijing) law firm.
Article 26 of the interpretation of the Supreme People’s Court on the application of law in the trial of disputes over construction contracts of construction projects applies to illegal subcontracting and illegal subcontracting of construction projects, not to affiliated cases.
The court accepted the case and formed a collegial panel to hear it according to law.
Bai Deqiang and CITIC Corporation have formed an affiliated relationship based on the internal contract signed.
506 of Sichuan Provincial Higher People’s court due to the dispute over the construction contract with the respondent Bai Deqiang, CITIC Guoan Construction Engineering Group Co., Ltd.
The judgment of the first and second instance determined that the two parties performed the construction contract with a fixed total price of 90.55 million yuan, and judged that CITIC company and Ruichang company were liable for payment according to the contract.
Article 26 (now article 43) if the actual construction contractor brings a lawsuit against a subcontractor or illegal subcontractor, the people’s court shall accept it according to law.
The basic facts were wrong.
(formerly Sichuan Shengmao Construction Co., Ltd.), with its domicile at Caojin Road, Wuhou District, Chengdu City, Sichuan Province.
(hereinafter referred to as Ruichang company) refused to accept the civil judgment (2018) No.
Therefore, generally speaking, it should be reviewed and determined whether it belongs to affiliated or subcontracting according to the payment subject and capital source of the bid security, whether the actual constructor (affiliated) signs the contract as the entrusted agent of the contractor, and whether the actual constructor (affiliated) has negotiated with the employer on contract matters.
Ruichang company applied for retrial, saying that (I) Ruichang company and CITIC company actually performed the construction contract with the contract price of 65.8 million yuan.
The statement issued by Chongqing Wanzhou Jiangnan New Area Construction and Environmental Protection Bureau confirmed that the contract price specified in the construction project construction permit for the project involved issued by the bureau to Ruichang company and CITIC company on May 21, 2011 is composed of the construction contract cost of 65.8 million yuan and 24.75 million yuan of materials supplied by Party A in the certificate application materials of Ruichang company and CITIC company.
As of September 2013, the amount of “materials supplied by Party A” of the project involved had reached 43077438 yuan.
If the actual construction contractor claims the rights with the employer as the defendant, the people’s court shall add the subcontractor or illegal subcontractor as the third party in the case.
（2） In the judgment of the second instance, Ruichang company assumed the payment responsibility for Bai Deqiang within the scope of project funds owed to CITIC company, and the applicable law was wrong.
