The second instance of HN Provincial Higher People’s court held that although the construction project construction contract in this case was signed by company B and company a, company B and Niu signed the internal contract agreement, which clearly agreed that the project in this case was contracted by Niu himself and externally by company B; Niu Moumou independently employs staff, raises funds, carries out construction independently, bears risks, establishes independent financial books and accounts independently, and Niu Moumou only pays 1% of the management fee to company B.
On December 24, 2014, the investment building involved in the case provided an acceptance report on divisional works of main structure, which proved that the framework of the investment building involved in the case, with 21 floors and a building area of 51535.68 square meters, was accepted, and the acceptance opinions of the construction unit, the supervision unit and the design unit were qualified.
Niu Moumou counterclaims to XC intermediate people’s Court: order company a to pay the project payment and interest owed to Niu Moumou; Order company a to compensate Niu for the loss and interest caused by the project price in arrears; Order company a to return the project deposit and interest; It is confirmed that Niu has the legal priority to be compensated for the auction or discount price of the investment building project involved in the case.
The contract stipulates that company B shall undertake the construction of an investment building project developed and constructed by company a (2 floors underground and 21 floors above the ground, a total of 23 floors, with a construction area of 51000 square meters).
If the employer does not know the affiliation fact and has reason to believe that the real contractor is the affiliation, it shall give priority to protecting the interests of the bona fide counterpart.
The seven technical and management personnel in the first group of evidence submitted by company a in the second instance are also employees of company B hired by Niu to complete the project in Ding City in the name of company B, and are not employees of company B.
On October 20, 2012, company B issued the power of attorney.
On September 10, 2012, company B signed an internal contract agreement with Niu Moumou, which reads that Niu Moumou, as the Department Manager of the project engineering department of the investment building involved in the case of company B, reached a cost agreement for Niu Moumou to contract the project.
For payment to foreign company B, it can be paid only with a written payment letter signed by Niu Moumou.
The construction contract signed by both parties directly binds the employer and the affiliation, and the contract is not invalid only because of the affiliation relationship.
On December 25, 2012, the construction unit company a, the supervision unit company C and the construction unit company B signed and sealed the commencement report and determined that the commencement date of the investment building involved in the case was December 25, 2012.
The judgment only determines the effectiveness of the contract, and other litigation claims of both parties shall be judged separately.
According to item (2) of Article 1 of the judicial interpretation of construction contract (I), the contract is also invalid.
Among them, the contract between the employer and the affiliated person lacks effective intention, which belongs to conspiracy and hypocrisy.
In the actual construction, Niu is responsible for raising funds to advance funds for the preliminary project, and has complete control and decision-making power over the project construction, fund application, account fund control and personnel allocation.
Source| In the case of Faxin affiliated construction, the employer’s good faith is the prerequisite for the validity of the construction contract of the construction project – retrial of the dispute over the construction contract between the applicant company a and the respondent Niu Moumou and company B [gist of judgment] the effectiveness of the construction contract signed by the affiliated person in the name of the affiliated person shall be based on the employer’s good faith When signing the construction contract of construction project, whether it knows the affiliated facts to make a determination.
In conclusion, the court upheld the determination of invalidity of the contract in the judgment of first instance..
XC intermediate people’s court held that with regard to the determination of the effectiveness of the construction contract for construction projects, Niu Moumou, without qualification, borrowed the name of a qualified construction enterprise as the actual constructor to construct the project in this case.
after settlement, it will settle with Niu Moumou and pay the money to Niu Moumou.
Company a paid a total of 50.5 million yuan for the project.
According to paragraph 1 of Article 146 of the general provisions of the civil law (Article 146 of the civil code), the contract is invalid.
The legal representative of the company, Ma Moumou, entrusted Niu Moumou as the company’s agent.
The contracting scope includes: all contents within the scope of construction drawings, design changes, Q & a minutes, civil main body decoration, general water supply and drainage, electrical installation and pipe laying works, etc.
After the judgment of first instance was pronounced, company a refused to accept the judgment of first instance and appealed to HN Provincial Higher People’s court.
As the project leader of the investment building project involved in the case, he was responsible for handling all matters, and the legal consequences were borne by the company.
this group of evidence can not prove that the employees of company B have organized the construction and management of the project construction.
[basic case] on September 12, 2012, company a and company B signed the construction contract of construction project through negotiation.
Niu is also responsible for the coordination and handling of disputes between the two sides.
The contracting method is to contract labor and materials, ensure safety, quality and commitment.
Company A shall pay the progress payment according to the contract, and company B shall ensure continuous construction and the original construction period according to the contract; Company A agrees to extend the total construction period of the contract by 30 days, except for force majeure; For the final accounts entrusted by the three parties to the third party cost company, due to the objection of company B, company A agrees to check with the third party cost company, and the new final accounts shall be implemented after being reviewed and agreed by both parties; wait.
The contract between the employer and the affiliated party belongs to the contract signed by the affiliated party with the employer in the name of a qualified construction enterprise.
Therefore, the judgment confirms that the construction contract and ancillary contracts signed by company a and company B are invalid.
Company a brings a lawsuit to XC intermediate people’s court and requests: to terminate the construction contract and supplementary contract signed between company a and company B; Require Niu Moumou and company B to repair the leakage wall in the basement of the investment building project involved in the case to make it meet the qualified quality standard; Require Niu and company B to jointly pay liquidated damages for project delay.
On October 12, 2013, Han Moumou of company a and Niu Moumou of company B signed the construction supplementary agreement, which agreed that company a should pay 3 million yuan of project progress payment to company B before October 23, 2013, and company B should ensure the timely payment of migrant workers’ wages; Company B must return to work unconditionally on October 13, 2013, and the main project must be completed before December 20, 2013.
That is, the three parties hide the contract between the employer and the affiliated with the contract between the employer and the affiliated.
Subcontracting violates the mandatory provisions of law and is an invalid contract.
The contracting method is to pay 1% of the management fee, independently hire staff, raise funds, construct independently and bear risks.
The act of the affiliated party handing over the contracted project to the affiliated party for construction is a subcontracting act.
The project is contracted by Niu Moumou himself and externally by company B, and the construction contract of construction project is signed between company B and the construction unit, Niu Moumou sets up financial account books independently for independent accounting and settlement with foreign company B.
The court of first instance held that the contract related to the construction of the construction project involved in this case was invalid because it violated the mandatory provisions of laws and administrative regulations and complied with the provisions of the law.
If the employer knows the affiliation fact when signing the contract, and the employer, the affiliation and the affiliated know that the affiliation signed the contract with the employer in the name of the affiliated when signing the construction contract of the construction project, this behavior is a hidden behavior.
The contracting scope is the construction of all civil and installation works contracted and responsible by company B in the investment building involved in the case.
The relevant contracts involving the construction of the project in this case violated the mandatory provisions of laws and administrative regulations, It is an invalid contract.
