Third, according to the joint construction agreement signed by C real estate company and B development company, both parties jointly invest and jointly obtain benefits.
39 key words: construction contract / basic situation of joint and several liability case: in 2001, a construction company and C real estate company signed the construction project construction contract, which agreed that a construction company should undertake the construction of a residential building in a residential community, The contract price is 44.4 million yuan (settled according to the actual situation).
Judgment result of the second instance: the judgment that B development company is jointly and severally liable for C real estate company and C real estate company to repay part of the project arrears of the constructor a construction company is revoked.
The project has been completed by a construction company according to the project scope, project quality and construction period requirements of C real estate company, and both parties are making final settlement according to the specific quantities.
In addition, in this case, it is judged that Party B development company bears joint and several liability rather than the responsibility for directly paying the project funds.
For the joint construction party signing the joint construction contract with the employer, if the joint construction party obtains the status of the employer or does not become a joint employer, the contractor claims that it should bear joint and several liabilities, it will not be supported.
On May 8, 2004, the project involving the building constructed by a construction company was completed.
Therefore, although Party B development company has not directly signed a construction contract with Party A construction company, it cannot exempt Party B development company from its obligation to pay project funds to party a construction company according to law.
On May 18, 2004, C real estate company issued the completion acceptance report of a building project involved in a community case.
As for the proposal of B development company to bear joint and several liability without the approval of the project final accounts of C real estate company and a construction company, it deprived them of their rights corresponding to the liability.
From the 31st day, it shall pay the interest on the overdue project payment according to the planned loan interest rate of the construction enterprise, and bear the liability for breach of contract.
Opinions of the court of second instance: first, Party B development company shall not be jointly and severally liable for the project arrears paid by C real estate company and C real estate company to party a construction company.
The accounting of quantities is complex, and the final settlement is expected to be completed before the end of the year.
Secondly, C real estate company, C real estate company and B development company agreed in the joint building agreement and the supplementary agreement to the joint building agreement that both parties jointly select the construction team and jointly manage the project involved in the case, and the project loan involved in the case shall be placed in the account recognized by both parties and jointly managed by both parties.
Editor’s note: the Construction Party of the construction project can only claim the project funds from the employer based on the creditor’s rights and debts arising from the construction contract of the construction project.
” On November 17, 2004, C real estate company issued a receipt, which stated that “we received the final accounts of the heating project sent by a construction company today, including 4 copies of the final accounts of the project, in which the total price in the final accounts is 798664.00 yuan, and the total price in the final accounts is 180759.00 yuan.
Part of the acceptance opinions of the certificate stated that “after the inspection and acceptance of the on-site physical and technical data, it is determined that the project meets the requirements of design and construction specifications, mandatory standards and regulations, and functional requirements, The comprehensive evaluation of the project quality is excellent, and the acceptance is agreed.
After verification and confirmation, the payment shall be paid to your company together with the project payment, claim (the agreed amount is 5.5 million yuan) and compensation house (one set).
” On November 15, 2004, C real estate company issued the statement on project fund settlement, which stated that “the residential building project involved in a community contracted by C real estate company is undertaken by a construction company.
It is agreed that a community project has passed the completion acceptance.
Trial process of second instance: construction company a appealed against the judgment of first instance and changed item 4 of the main text of the judgment of first instance.
C real estate company does not handle settlement within 30 days after receiving the completion report of a construction company.
Since the construction contract was signed by a construction company and C real estate company, the final settlement of project cost made by a construction company and C real estate company is effective, B development company did not raise any objection to the project cost in the lawsuit, nor did it provide evidence to prove that the final settlement damaged the interests of B development company.
Judgment results of first instance: the judgment of first instance found that Party B development company should bear some joint and several liabilities.
The final calculation of our company needs to be reviewed and confirmed.
Although construction company a is not the construction team jointly selected by C real estate company and B development company, in the supplementary agreement between B development company and C real estate company and during the performance of the construction contract between C real estate company and a construction company, B development company recognizes the construction contract signed between C real estate company and a construction company, When a construction company asked C real estate company for payment during the construction period, B development company also signed and sealed the payment request report, indicating that B development company has actually participated in the performance of the construction contract.
Development Company B shall be jointly and severally liable for all the project funds paid by real estate company C to Bohai company.
During the execution of this judgment, if Party B development company bears the joint and several liability for the project funds paid by C real estate company and C real estate company to party a construction company according to this judgment, Party B development company can claim rights from C real estate company and C real estate company at any time, They can also claim their rights when the two sides divide and build joint interests, and there is no problem of depriving them of their rights and damaging their interests.
” In 2005, a construction company sued B real estate company and C development company to pay off the project payment in arrears.
B development company shall be jointly and severally liable for the project funds owed by C real estate company and C real estate company.
Although Party B development company has not signed a construction contract with Party A construction company, it enjoys the right of the project already constructed by Party A construction company and obtains benefits from the contract.
B development company claims that it should not bear the responsibility of paying the project payment on the ground that it is not a party to the construction contract of the construction project.
The claim of Party B development company that it should bear the joint and several liability for the payment of project funds breaks through the principle of relativity of contract, which has no factual and legal basis and can not be supported.
Project payment method: according to the construction image progress bank transfer check, the project progress payment shall be paid within one week, and 98% of the total cost shall be paid within 30 days after the completion of the project.
First of all, the legal relationship of this case is the construction contract dispute, not the cooperative development real estate contract dispute..
B development company claims that the above can not be used as a reason for joint and several liability, and the basis is insufficient and will not be supported.
Opinions of the court of first instance: first, although the construction contract was signed between Party C real estate company and party a construction company, Party B development company is the joint developer of the construction project of party a construction company, the joint construction interests of Party B development company and Party C real estate company have not been divided, and the land use certificate of the project involved in the case The sales license shall be handled in the name of Party B development company, and the commercial housing sales contract involving the project property in the sales case is also signed in the name of Party B development company.
Therefore, B development company does not recognize that the project final accounts between a construction company and C real estate company have no basis.
Therefore, Party B development company should bear the corresponding obligations of the contract.
Typical case: a construction company, B development company and C real estate company construction contract dispute case No.: (2007) min Yi Zhong Zi No.
The column of project completion acceptance opinions in the report stated: “the experience receiving group agreed that the project has completed the design drawings and the contents agreed in the contract, the project quality meets the provisions of mandatory standards, and there are no potential safety hazards in the foundation, foundation and main structure, The use function shall meet the technical requirements, the engineering technical archives and supervision archives shall be complete, and the data shall be complete and the quality inspection standard shall be accurate.
In terms of legal nature, the joint construction behavior should be a partnership behavior, and the partners should be responsible for the partnership debts.
” On May 30 of the same year, a construction company, C real estate company and companies outside the case signed the unit project handover and acceptance certificate for the building involved in the case of a community.
