According to the principle of contract relativity, 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 directly connected with the employer by the affiliated person over the affiliated person.
The indirect costs of the project price due to the actual constructor should not deduct the enterprise management fees, fees and profits.
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the actual construction subject who has established a contractual relationship with the contractor) and the affiliate in the affiliation relationship can be the actual constructor, but the legal effects of the two are not completely the same, so only by distinguishing different types of actual constructors can we accurately apply the law and determine the rights and obligations of the parties.
In the actual construction process, the subcontractor, as a transfer link, has a strong management and dominant position on the project.
Wang Guoqing, as the plaintiff, claimed that the actual construction of the fire protection project should have the burden of proof for the “existence of legal relationship” of the fire protection project under construction, and should meet the standard of “high possibility”.
As required by the government and relevant authorities, the fees include five insurances and one fund paid for employees and the construction site pollution discharge fees paid according to regulations.
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 Wang Guoqing failed to reach the high possibility of directly proving or indirectly forming a chain to prove his claim.
Our institute believes that both the subcontractor in the subcontracting relationship (i.e.
The Employer conducts construction instructions, progress payment and other work through subcontractors, and the subcontractors as actual constructors submit quantities, progress and other work through subcontractors.
Judgment opinion: The appraisal opinion of Huakun Consulting Price Verification (2019) No.
When the Employer does not know the affiliate, the affiliate generally has no right to claim the right to the Employer directly over the affiliate: Steel Construction Company claims that the project involved in the case was negotiated with Zunyi Development Investment Company in advance before he found the steel construction company to borrow the qualification.
412 2.
Under the condition that the project completed by Pan Chuanjin does not have quality problems, the purpose of the contract of China Railway 12th Bureau No.
Judgment opinion: in this case, The Construction Contract of Construction Engineering dated September 5, 2010 does not include fire protection engineering, and the appraisal opinion of the first instance also does not include fire protection engineering cost.
The term contracting projects referred to in the preceding paragraph includes participating in bidding, concluding contracts, going through 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.
Article 7 of the Measures of the Ministry of Housing and Urban Rural Development for the Administration of the Determination, Investigation and Punishment of Illegal Acts of Contracting and Contracting of Construction Projects stipulates that “the subcontracting referred to in these Measures refers to the act of the contractor, after contracting the project, failing to perform the responsibilities and obligations agreed in the contract, transferring all the projects it has contracted or dismembering all the projects it has contracted 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.
2 states that the indirect costs of 868820 yuan include the enterprise management fees, fees and profits.
As the project involved in the case was constructed by the workers organized by Pan Chuanjin, the five insurances and one fund involved should be borne by Pan Chuanjin, so the fees should not be deducted from the project price due to Pan Chuanjin.
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.
The profit is the corresponding consideration that Pan Chuanjin should get.
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.
As for the profit, Pan Chuanjin, as the construction party, has materialized his labor and materials in the overall value of the construction project.
has been realized.
In the former case, although the construction contract of the construction project is nominally the affiliated person, in essence, the affiliated person has established a de facto contractual relationship with the employer.
The party who borrows the qualification, that is, the affiliated person, directly contacts the Employer, and participates in bidding, concluding contracts, and conducting construction throughout the process.
Wang Guoqing failed to complete the obligation of proof, and should bear the adverse consequences of failure to provide evidence according to law—— Case index: (2021) Supreme Farming Re No.46 3.
Article 9 of the above-mentioned administrative measures of the Ministry of Housing and Urban Rural Development also stipulates: “Affiliation referred to in these Measures refers to the act of a unit or individual contracting projects in the name of other qualified construction units.
The actual constructor has the obligation to provide evidence for the construction of the project involved, and needs to provide core objective evidence such as project visa or project handover and acceptance procedures.
2 Co., Ltd., it will be based on the same invalid contract, The Second Company of China Railway 12th Bureau will gain 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 index: (2021) Supreme Famin Zhong No.
After undertaking the project, the subcontractor transfers the whole project to other subjects for construction, but it does not break away from this contract chain relationship and is still a part of the construction project chain contract.
2 Co., Ltd.
In practice, affiliation can be divided into two situations: the employer knows and does not know.
In the latter case, the law and judicial interpretation did not endow the affiliated person with the principle of contract relativity..
If this part of the profit is left to China Railway 12th Bureau No.
Zunyi Development Investment Company has clear, laissez faire and pursuit of Luo Shangxiong’s borrowing of qualification After posting, Zunyi Development Investment Company and Luo Shangxiong established a de facto construction contract relationship.
