In this case, Wang Gang and Hua’an company did not sign a written affiliation agreement or borrowing qualification agreement, and Hua’an company claimed that its three branches participated in the construction management, but did not deny that Wang Gang actually invested funds, materials and labor in the project involved in the case
.
The court believes that the focus of dispute in this case is whether there is an error in determining Wang Gang as the actual constructor of the project involved in the case in the second instance
.
The court of first instance determined that Wang Gang was the actual constructor of the project involved in the case only by purchasing some materials, which violated logical reasoning and daily life experience
.
126 retrial applicant (defendant of first instance and appellant of second instance): Anqiu Hua’an Construction Co., Ltd., with domicile at Weixu South Road, Anqiu City, Shandong Province * *
.
Legal representative: Jia Feifei, manager of the company Hua’an company applied for retrial and said that (I) Wang Gang was identified as the actual constructor of the project involved in the case in the second instance, which was lack of evidence
.
The fact that Hua’an company pays the project funds to Wang Gang and Wang Gang submits the monthly cash receipt and payment details to Hua’an company just proves the existence of the tripartite partnership
.
Wang Gang claimed in the first instance that it was an affiliated construction, which was inconsistent with the facts
.
In addition, Wang Gang sued Hua’an company to pay the outstanding project funds of the project involved in the case, which is mainly based on the accounting reconciliation details of both parties
.
Hua’an company also recognized that it had paid Wang Gang more than 60 million yuan for the project alone
.
Wang Gang provided evidence of purchasing materials in the first instance, and the amount was far less than the raw materials required for the project involved in the case
.
Therefore, it is not inappropriate for the second instance to determine that Wang Gang is the actual constructor of the project involved in the case
.
Examine sentence long Zhang Pure trial sentence member ten thousand Tingshen sentence member Pan Written by Jie on March 29, 2019 remember member Song Dynasty Jian declares that the content pushed by this platform comes from the network except for the signature
.
According to the first paragraph of Article 204 of the Civil Procedure Law of the people’s Republic of China and the second paragraph of article 395 of the interpretation of the Supreme People’s Court on application, the ruling is as follows: the retrial application of Anqiu Hua’an Construction Co., Ltd
.
Respondent (plaintiff of first instance and appellee of second instance): Wang Gang, male
.
The “contract signing and contract signing” and “contract signing” and “contract signing” and “contract signing” and “contract signing” and “contract signing” and “contract signing” and “contract signing” and “contract signing” and “contract signing” and “contract signing” and “contract signing” and “contract signing” and “contract signing” and “contract signing” and “contract signing” and “contract signing” and “contract signing” and “contract signing” and “contract signing” and “contract signing” and “participation” by Wang Huagang are not
.
The “actual constructor” refers to the contractor, sub contractor, qualified constructor or affiliated constructor of illegal professional engineering subcontract or labor operation subcontract; If the construction project is subcontracted several times, the actual constructor shall be the legal person, unincorporated enterprise, individual partnership, contractor and other civil subjects who finally actually invest funds, materials and labor to carry out the project construction
.
is rejected
.
2
.
[gist of judgment] “actual constructor” refers to the contractor, sub contractor, qualified constructor or affiliated constructor of illegal professional engineering subcontract or labor operation subcontract; If the construction project is subcontracted several times, the actual constructor shall be the legal person, unincorporated enterprise, individual partnership, contractor and other civil subjects who finally actually invest funds, materials and labor to carry out the project construction
.
1
.
If there is infringement, please contact to delete it..
.
It should be deemed that both parties have settled the project involved in the case, and Hua’an company has also paid most of Wang Gang’s project funds
.
Wang Gang actually invested funds, materials and labor in the construction of the project involved in the case
.
The third party in the first instance: Anqiu Lianzhong Construction Labor Service Co., Ltd., with its domicile at Weixu South Road, Anqiu City, Shandong Province
.
From the facts found out in the first and second instance, Wang Gang signed a large number of installation and construction contracts on the project involved in the case in the name of Hua’an company
Because Wang Gang does not have the construction qualification of construction project, even if several parties advocated by Hua’an company carry out construction in the form of partnership and cooperation, it is also the case that Hua’an company allows unqualified personnel to contract the project in the name of the enterprise
.
According to Article 10 of the administrative measures for the identification, investigation and punishment of illegal acts such as construction subcontracting and subcontracting of construction projects (for Trial Implementation), “affiliated” refers to the act of a unit or individual contracting projects in the name of other qualified construction units
.
According to the provisions of item (2) of Article 1 of the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract dispute cases of construction projects, if an unqualified actual constructor borrows the name of a qualified construction enterprise for construction, the construction contract of construction projects shall be deemed invalid
.
Hua’an company denies that Wang Gang borrowed his company’s qualification to engage in construction activities and has an affiliated construction relationship with him, which lacks factual and legal basis
.
This situation should still be recognized as the affiliation of illegal subcontracting in the construction contract of construction project
.
In conclusion, Hua’an company applied for retrial in accordance with paragraph 2 of article 200 of the Civil Procedure Law of the people’s Republic of China
.
Supreme People’s Court of the people’s Republic of China Adjudication Ding Shu (2019) Supreme FA min Shen No
.
On this basis, Hua’an company refused to pay the project funds on the grounds of denying Wang Gang’s identity as “actual constructor”, which has insufficient grounds
.
It is only for academic discussion and information sharing
.
According to Article 272 of the contract law of the people’s Republic of China, the contractor is prohibited from subcontracting the project to units without corresponding qualifications
.
The determination of Wang Gang’s affiliated construction in the second instance is inconsistent with the evidence submitted by Hua’an company and Wang Shujun’s statement（ 1) In the first instance, the evidence submitted by Hua’an company is sufficient to prove that Hua’an company participated in the whole process of contract signing, management, construction, acceptance and settlement of the project involved in the case（ 2) In the second instance, the testimony of witnesses Wang and Niu and the statement of Wang Shujun can confirm that the three parties jointly invested and participated in the project management involved in the case, and the three parties are in partnership（ 2） In the second instance, it was wrong to regard the project payment paid by Hua’an company to Wang Gang as the direct factual basis for denying the tripartite partnership
.
