[gist of judgment] the second paragraph of Article 26 of the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract disputes of construction projects stipulates that the employer shall only be liable to the actual constructor within the scope of the project price owed, that is, the actual constructor has the conditions to claim the project price from the employer, but it does not stipulate that the actual constructor has the priority to receive the project price Compensation right
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Article 286 of the contract law of the people’s Republic of China only stipulates that the Contractor shall have the priority of compensation for the project price, and it does not stipulate that the actual constructor shall also have the right
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Civil judgment of the Supreme People’s Court of the people’s Republic of China (2019) Supreme People’s court no.258 retrial applicant (plaintiff of the first instance and appellant of the second instance): Wu Daoquan, male, born on June 7, 1967, Han nationality, living in Fuling District, Chongqing
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Respondent (defendant in the first instance and appellant in the second instance): Chongqing Fengdu first construction engineering company; respondent (defendant in the first instance and appellant in the second instance): Chongqing Garden Engineering Construction Co., Ltd.; respondent (defendant in the first instance and appellant in the second instance): Chongqing Fengdu Furui culture Communication Co., Ltd.; respondent (defendant in the first instance and appellant in the second instance): Chongqing The court of Fuyou Cultural Development Co., Ltd
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held that the focus of the dispute in this case is: whether the earthwork project of 113800 yuan and other projects of 710000 yuan should be accepted and included in the project price; 2
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The confirmation and bearing of Wu Daoquan’s start time and shutdown loss; 3
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Whether the interest on the outstanding project price should be supported and the interest standard; 4
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Furui company and Fuyou company Who should bear the responsibility to Fengdu first construction company? 5
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Whether Wu Daoquan has the priority of compensation for the project price
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On the issue of whether 1.38 million yuan of earthwork and 710000 yuan of other projects should be accepted and included in the project price
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For other projects with RMB 710000 yuan, the construction unit, supervision unit and construction unit did not sign and seal the engineering quantity certificate submitted by Wu Daoquan
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Wu Daoquan also can not prove that Fuyou company, Furui company or Fengdu first construction company confirmed the visa form, and the construction drawings, photos and other evidence submitted by him are not enough to prove the actual amount of work
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According to Article 19 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, “if the parties have disputes over the quantities of works, they shall confirm them in accordance with the written documents such as the visa formed during the construction process
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If the contractor is able to prove that the employer agrees with the construction, but fails to provide visa documents to prove that the quantities have occurred, he may confirm the actual quantities according to other evidences provided by the parties
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” It is not improper that other items of 710000 yuan were not included in the project price in the original audit
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For the 1.38 million yuan earthwork project, because Wu Daoquan did not explicitly put forward the claim to the first and second instance, he claimed to the court that it was a necessary project, but did not submit relevant evidence, and the expert opinion has listed the relevant labor earthwork engineering cost and mechanical earthwork engineering cost in the signed part of the engineering quantity
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The court does not support his claim
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About Wu Daoquan’s confirmation and bearing of the start time and shutdown loss
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First of all, Fuyou company and Furui company, as the employer, signed the “general contract for construction project” with Fengdu No.1 Construction Company, and agreed that the commencement date shall be subject to the written approval of the employer or the supervisor and the contractor
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Fengdu No.1 Construction Company, as the employer, and Wu Daoquan, as the contractor, signed the internal contract of construction project, which also stipulates that the commencement date shall be subject to the commencement date approved in writing by the employer, the supervisor and the contractor
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2
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The contract agreement is basically the same, that is, the commencement date shall be approved in writing by Fuyou company, Furui company or Wu Daoquan
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On August 12, 2015, Furui company issued the notice of commencement to Fengdu No.1 Construction Company, which stated: “your company has undertaken the reconstruction project of Fengdu cultural and creative park, the International Magic film 5D sitcom cultural theme park
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Now it has the conditions for commencement
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You can enter the site first to build a temporary residence
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After the demolition of Yinsi street in ghost palace is completed in about 20 days, your company will arrange the construction in time Our company will not give further notice
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” As the owner and employer, Furui company has approved that the conditions for commencement will be met on August 12, 2015, and after the demolition work is completed in about 20 days, Wu Daoquan will arrange the commencement by himself
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The content of the notice is not contradictory to Wu Daoquan’s proposal to start construction on August 29, 2015, which can basically confirm each other and is also in line with the contract
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Secondly, the notice on site inspection and treatment of engineering quality and safety of Chongqing Fengdu No.1 Construction Engineering Company submitted by Wu Daoquan was issued by Fengdu No.1 Construction Engineering Company, indicating that the inspection time was September 11, 2015
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The existing problem was that the inspection wells and construction power used at the construction site of the project were not standardized, and the inspector’s opinion was that the rectification was qualified
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On September 15, 2015, the “rectification punishment decision” was made by Furui company
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The contents are: 1
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The temporary construction fence is not complete; 2
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The open caisson protection is not standardized, and the rectification has been required for many times, but the rectification has not been carried out so far
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Fengdu No.1 Construction Company was fined accordingly
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Combined with the delivery note of Chongqing Jiandian Concrete Co., Ltd
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submitted to the court of first instance on August 29, 2015, it can also support Wu Daoquan’s claim that the commencement date of the project involved in the case was August 29, 2015
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The project involved in the case started on August 29, 2015
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According to the internal contract of construction project, Fengdu first construction company shall pay the first project payment on October 29, 2015
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However, Fengdu No.1 Construction Company did not pay for the project as agreed, so the project involved in the case was shut down
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Fengdu No.1 Construction Company shall bear corresponding responsibility for Wu Daoquan’s shutdown loss
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According to the expert opinion and relevant evidence, the court of first instance supported that Wu Daoquan’s loss of 1550941.76 yuan was not improper
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Wu Daoquan claimed that the cost of project department and container was 445509.01 yuan, which was not supported by the court of first instance
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Wu Daoquan also claimed that he should support the payment for steel structure materials
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The expert opinion held that the payment of 559375.07 yuan for steel structure materials was calculated according to the “steel structure product processing contract” provided by Wu Daoquan, but the contract was made by Fengdu first construction company, without the seal of Fengdu first construction company or the signature of its entrusted agent
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It was not improper for the court of first instance not to support his claim
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Therefore, the Court confirmed the shutdown loss determined in the first instance
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Whether the interest of the outstanding project price should be supported and the interest standard
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All parties have no objection to the project funds owed to Wu Daoquan by Fengdu No.1 Construction Co., Ltd., which was confirmed by the court
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According to the internal contract of construction project, the first payment is based on two months after the commencement of the project, and the bank transfer payment is made five days before the next month of the settlement month
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The commencement date of the project involved in the case is August 29, 2015, and the first payment time of Fengdu first construction company should be October 29, 2015, at the latest before November 5, 2015
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However, Fengdu No.1 Construction Company did not pay the project payment as agreed, so the interest on the outstanding project payment should be paid from November 6, 2015
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The landscape engineering company argued that Wu Daoquan did not claim the interest of the project funds in the first and second instance, and the judgment of the second instance that the interest of the project funds was paid violated the principle of “no action, no reason”.
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