③ Although the request of the parties in this case appears in the form of debt repayment, its essence is still the debt dispute of construction contract, but this debt dispute is that the parties have reached an agreement through settlement agreement and repayment agreement, so the cause of this case should still be the contract dispute of construction project
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The development company claims not to settle according to the settlement agreement, but requests the court to identify the project involved in the case
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Moreover, this kind of identification ignores the true intention of the parties to sign the settlement agreement, which is also unreasonable
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Under the condition of qualified completion acceptance of the project, from the perspective of reducing litigation and promoting economic development, the settlement intention of the parties should be recognized as true and protected
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If the court adopts it, it will inevitably delay the trial of the case, increase the litigation burden of the parties, and it is not in line with the economic requirements of the litigation
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② The actual construction contractor has settled the project price with the employer
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and Zheng Yanli construction project” (Zhong Weiheng, latest edition) The first people’s Court of the Supreme People’s Court (201201 / 49:170)..
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In this case, in the case that the development company did not pay for the project, the actual constructor Zheng was given the right to sue the development company directly, which is in line with the above judicial interpretation
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By summarizing the practical experience of judicial trial, the actual construction person is determined as the actual construction person after the construction contract signed for the borrowed qualification, illegal subcontracting and illegal subcontracting is determined to be invalid in the trial practice, and many procedural and substantive characteristics are given to the actual construction person from the perspective of protecting their interests Rights, so as to realize the protection of their interests
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Therefore, this case can directly recognize the effectiveness of the settlement agreement and make a judgment According to this, the development company paid more than 5 million yuan and the corresponding interest to Zheng
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In 2008, Zheng sued the development company
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——After the construction project has passed the completion acceptance, if the actual constructor claims the project payment according to the settlement agreement of the construction project price signed with the employer, the court shall protect it
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Zheng borrowed the construction qualification of the construction company and signed the construction contract with the development company in the name of the first branch of the construction company
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The actual construction person is the concept of the system determined by the judicial interpretation
.
Case index: the Supreme People’s court’s “dispute case of construction contract between a development company and Zheng”, see “settlement agreement of construction project price signed by the actual constructor and the employer after the construction project has passed the completion acceptance, which can be protected by the people’s Court — dispute case of construction contract between Heilongjiang Dongyang Real Estate Development Co., Ltd
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Practical points: if the actual constructor claims the project payment according to the settlement agreement signed with the employer on the completion acceptance project, and the employer claims the re cost appraisal, the court shall not accept it
.
Case brief introduction: in 2006, Mr
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It is against the principle of good faith for the employer to claim the appraisal of the project or the payment to the unit with borrowed qualification, and the court shall not support it
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If the employer fails to pay the project payment according to the settlement agreement, and the actual constructor requests the court for payment, it shall be regarded as the actual constructor’s exercise of the right of discount compensation
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In 2007, Mr
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The development company applied for re appraisal
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Zheng signed a settlement agreement with the development company and agreed on the installment payment time of the project balance
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The court held that: (1) according to the relevant provisions of the judicial interpretation of the construction project of the Supreme People’s court, the construction contract of the construction project is invalid, but the construction project has passed the completion acceptance, and the Contractor’s request to pay the project price according to the contract shall be supported
.
