Affiliated construction is a very common phenomenon in the field of construction engineering, and it is also one of the construction behaviors that are most prone to project payment disputes
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Generally, both parties will agree that the project will be handed over to the affiliated person for construction, and the construction person shall be responsible for its own profits and losses, but a certain proportion of the project funds shall be paid to the affiliated person as the management fee
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According to the law, affiliation is illegal
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As long as it is identified as affiliation construction, the contracts and agreements signed by the parties are invalid
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When the two parties have disputes over the project funds, there are many different views and situations on how to deal with the management fees in the process of affiliation in judicial practice
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In practice, the management fee may be paid directly by the affiliated person in one lump sum, or it may be deducted one by one in proportion after receiving the progress payment
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After the dispute, the main controversial points are divided into two points: whether the affiliated person can ask the affiliated person to return the paid management fee and whether the affiliated person can ask the affiliated person to pay the remaining management fee
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Is the project payment in arrears? Professional engineering lawyers help you! Can party B request the refund of the management fee paid? On this issue, there is a view that the management fee in the case of affiliation belongs to illegal unjust enrichment, so what has been collected should be returned
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However, there are also views that if the affiliated company does participate in the management of project funds, considering its labor payment, it should be supported to collect management fees as appropriate
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In practice, according to the Supreme Court has made a decision on the management fee, for the management fee that has been paid, the return request of the affiliated person can not be supported
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Although the management fee is an illegal income, both parties who signed the affiliation agreement have violated the law, and the affiliation person also has faults and can not profit from it
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Is the project payment in arrears? Professional engineering lawyers help you! Can party a claim the management fee that has not been charged yet? At the same time, there is also a situation that the above-mentioned affiliated fee is not a one-time expenditure, but is paid in batches according to the project funds received by the affiliated person
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So when both parties have disputes, the affiliated person may only pay a part of the agreed management fee
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In the process of litigation, the affiliated person will generally require the affiliated person to pay the corresponding fee, or deduct the fee from the project payment
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In view of this situation, there are also different judgments in judicial practice, which have a lot to do with the specific circumstances of the case and can not be generalized
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In some cases, the court does not support the management fee claimed by the affiliated company at all
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In some cases, the court fully supports it
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In other cases, it only supports part of it
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In some cases, the court even confiscates the management fee
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Whether the court supports Party A’s claim on management fee mainly depends on whether the affiliated party has actually implemented corresponding management work for the project (such as undertaking corresponding responsibilities for quality, safety, construction period, fund supervision, project management, etc.) to the employer
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Is the project payment in arrears? Professional engineering lawyers help you! epilogue In a word, if the affiliated company only lends its qualification, its claim on management fee will not be supported
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If it does manage the construction, whether it can claim the management fee from the affiliated person and how much it can claim will depend on the specific circumstances of the case
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There are many ways to deal with the retrieval of judicial practice cases, and there is no unified opinion and standard, so the discretion of judges is often more important
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Therefore, in the process of litigation, if there is a dispute in this regard, it is best to hire a professional lawyer for the project payment
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With his experience, he can quote the judgment made by the Supreme Court or the local high court, and strive for a favorable judgment for his own side as far as possible based on his judgment point of view Recommended reading – 01: in the case of affiliation, as long as these conditions are met, you can directly claim the project payment from the employer! 02: if Party A fails to reply within the time limit, can party a request to determine the project payment according to the settlement data submitted by Party A? 03: method | how to collect project funds without contract.
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