On May 28, 2017, Lu, on behalf of the decoration company, signed a professional subcontract for construction engineering with yuan, subcontracting the above works 7# and public part decoration works to yuan for construction.
Second, the decoration company recognized that it had received the 3273848.16 yuan and agreed to be paid.
The current real estate company has submitted relevant evidence to prove that it has paid the two amounts to the factoring company, and the factoring company has also made a statement on the settlement of the two amounts.
The court of first instance held that the employer had not submitted evidence to prove that it had paid to yuan The reason why the third party pays the corresponding payment is that the employer still owes the corresponding project payment, and then orders the employer to bear the corresponding payment responsibility.
[case No.] (2020) Su 09 min Zhong No.
First, according to the open domestic factoring contract without recourse signed between the decoration company and the factoring company, the seller (decoration company) transferred the accounts receivable under the transaction contract to the factoring company (factoring company), the factoring company agrees to transfer the accounts receivable in accordance with the contract and provide the seller with domestic factoring services such as factoring financing, accounts receivable management and collection, buyer’s credit risk guarantee, etc.
In conclusion, it should be recognized that the unpaid project payment of the real estate company is 3638677.94 yuan, and the real estate company should bear the payment responsibility for Yuan’s debt within this scope.
[the court of second instance held that] in this case, the real estate company should be liable to yuan within the scope of the project funds owed to the decoration company.
β the lawyer pointed out that in this case, the court did not directly evaluate the effectiveness of the general contractor’s transfer of creditor’s rights, but determined whether the employer still had to bear responsibility to the actual constructor from the perspective of whether the employer actually paid the project funds.
After the contract was signed, Yuan organized personnel to enter the site for construction.
It can be seen that the court does not recognize the effectiveness of the transfer of the creditor’s rights of the main contractor, or the recognition with strict conditions, that is, the transfer of the creditor’s rights takes effect only within the scope of the project funds actually received by the main contractor, and the part paid by the employer exceeding the amount received by the main contractor does not belong to the effective payment of the project funds.
The real estate company filed an appeal and submitted the settlement statement and two bank receipts issued by the factoring company on August 17, 2020, proving that the involved funds have been settled.
If the actual constructor claims rights on the employer, the employer shall be liable to the actual constructor only within the scope of the unpaid project price.
The court of second instance, in combination with the payment made by the third party to the general contractor, the payment made by the employer to the third party and the confirmation of the project payment by the general contractor, finally determined that the amount actually received by the general contractor from the third party was the project payment paid by the employer, rather than the amount of debt transfer of the general contractor.
[the court of first instance held] on the issue of whether the employer should be held responsible.
[court judgment] a real estate company paid RMB 364829.78 to yuan for the project.
the decoration company issued two notices of transfer of accounts receivable to the real estate company on October 20, 2017 and December 16, 2017, with the transfer amounts of 1236004.89 yuan and 2280748.35 yuan respectively γ The post factoring company paid the above two amounts to the decoration company.
In this case, the employer may face the risk of repeated payment.
For the actual constructor, if the third party fails to take preservation measures against the main contractor in time after paying the money to the main contractor, it may also face the risk of deterioration of the financial situation of the main contractor..
The 3273848.16 yuan paid by the factoring company to the decoration company is the financing Fund for the decoration company to sign the financing agreement with the factoring company with the receivables as pledge, including the real estate The real estate company has not provided evidence to prove that the pledged receivables have been paid to the factoring company, so this part of the funds cannot be recognized as the paid project funds of the real estate company.
Focus on construction and real estate legal services [Abstract] the general contractor transferred the creditor’s rights of the project funds to a third party.
The post decoration company signed a discount purchase agreement for financial assets with a factoring company , the project receivables involved in the case are pledged, and the factoring company shall pay the financing funds to the decoration company.
Yuan sued and asked a real estate company to bear responsibility within the scope of unpaid project price.
In the first instance, the employer did not submit evidence to prove that the funds involved in the creditor’s rights transfer had been paid to the third party, and the court ruled that the employer should bear joint and several liability to the actual constructor within the scope of arrears; in the second instance, after the employer submitted the evidence of payment to the third party, the second instance determined the transfer of creditor’s rights paid by the third party to the general contractor The consideration is the project payment paid by the employer to the main contractor, and the employer can be exempted from payment obligations within the scope of the paid project payment.
4352 [brief introduction to the case] on May 10, 2017, a decoration company and a real estate company signed the construction contract for Yancheng real estate phase II bid section II decoration project, which agreed that the decoration company should undertake the construction of Yancheng real estate phase II bid section II (Lingyu family) 3#, 4#, 7#, 8# building decoration works.
The factoring company transferred 1150633 yuan to the decoration company on November 1, 2017 and 2123215.16 yuan on January 17, 2018; On February 8, 2018, the real estate company transferred 2868708.99 yuan to the decoration company.
Therefore, the real estate company has submitted evidence to prove that it has paid the accounts receivable to the factoring company, so the 3273848.16 yuan actually received by the decoration company should be regarded as the paid project payment of the project involved in the case.
