[jianjiantong] it’s clear! Supreme law: how to distinguish between affiliated relationship and subcontracting relationship in construction


The construction organization design is an important construction document prepared by CITIC and reviewed and approved by Ruichang company and the project supervision unit.

CITIC submitted an opinion that 1.

As of September 2013, the amount of “materials supplied by Party A” of the project involved had reached 43077438 yuan.

In general, the distinction between subcontracting and affiliation should be judged by whether the actual constructor (affiliation) has participated in the activities of contracting and negotiation stages such as bidding and contract conclusion.

The construction organization design confirmed by Ruichang company, CITIC company and the project supervision unit indicates that Ruichang company and CITIC company signed the construction contract on May 13, 2011.

Entrusted agent ad litem: Xu Jiangliu, lawyer of Shanghai Jianwei (Beijing) law firm.

506 due to the dispute over the construction contract with the respondent Bai Deqiang, CITIC Guoan Construction Engineering Group Co., Ltd.

Full text: the Supreme People’s Court of the people’s Republic of China   matter   Ruling (2019) supreme law min Shen No.

Legal representative: Zeng Qu, chairman of the company.

(hereinafter referred to as CITIC company) and Liu Yonggang, the third person of first instance (the appellee of second instance), Apply to the court for retrial.

Therefore, even in the retrial procedure, Bai Deqiang fully approved the quotation of 48.5 million yuan for materials provided by Ruichang company a, plus the project payment of 90.55 million yuan claimed by Bai Deqiang, the total price of the project involved in the case is 139 million yuan, which is consistent with the basic situation.

Respondent (plaintiff of first instance and appellant of second instance): Bai Deqiang, male, born on June 7, 1970, Han nationality, lives in Wuhou District, Chengdu City, Sichuan Province.

Ruichang company knew that Bai Deqiang was the actual constructor, but it was not recognized in the first and second instance, which was a dishonest lawsuit.

The actual constructor in subcontracting generally does not participate in bidding and conclude the general contract, and his willingness to undertake the project is generally after the signing of the general contract.

Ruichang company should be clear about whether to sign the contract of 90.55 million yuan on May 13, 2011.

After the first and second instance proceedings, the lawsuit lasted for several years.

Moreover, the materials supplied by Party A of 24.75 million yuan plus the contract price of 65.8 million yuan can not complete the construction project.

Therefore, generally speaking, it shall be reviewed and determined whether it is affiliated or subcontracting according to the payment subject and capital source of the bid security, whether the actual constructor (affiliated) signs the contract as the entrusted agent of the contractor, and whether the actual constructor (affiliated) has negotiated with the employer on contract matters.

Lifting Anchor

Ruichang company never raised any objection to the contract on May 13, 2011, but thought that both parties performed the contract on April 1, 2011.

Ruichang company has been dishonest in the first and second instance proceedings.

(2) In the judgment of the second instance, Ruichang company assumed the payment responsibility for Bai Deqiang within the scope of project funds owed to CITIC company, and the applicable law was wrong.

Based on the above facts, the construction contract price determined in the construction permit of construction project shall be recognized as 65.8 million yuan.

The description issued by Chongqing Wanzhou Jiangnan New Area Construction and Environmental Protection Bureau confirms that the contract price specified in the construction project construction permit for the project involved issued by the bureau to Ruichang company and CITIC company on May 21, 2011 is composed of the construction contract cost of 65.8 million yuan and 24.75 million yuan of materials supplied by Party A in the application materials for certificates between Ruichang company and CITIC company.

(formerly Sichuan Shengmao Construction Co., Ltd.), with its domicile at Caojin Road, Wuhou District, Chengdu City, Sichuan Province.

1.

The basic facts were wrong.

Bai Deqiang is not the actual constructor of illegal subcontracting and illegal subcontracting, and has no right to claim the project payment from Ruichang company according to the provisions of the interpretation.

Therefore, the situation statement is inconsistent with the facts and the formation process is doubtful, which should not be accepted.

Therefore, Ruichang company stated in the retrial that its retrial agent found that the contract fraud on May 13, 2011 was completely contrary to common sense.

2.

Ruichang company applied for retrial, saying that (I) Ruichang company and CITIC company actually performed a construction contract with a contract price of 65.8 million yuan.

The situation statement issued by Wanzhou District Construction Committee is issued several years after the completion of the project.

729 retrial applicant (defendant of the first instance and appellee of the second instance): Chongqing Ruichang Real Estate Co., Ltd., with domicile in the office building of the Management Committee of Jiangnan New Area, Wanzhou District, Chongqing * *.

(hereinafter referred to as Ruichang company) refused to accept the civil judgment of Sichuan Higher People’s Court (2018) CMZ No.

It is an important identification basis for the performance and implementation of the construction contract.

For the total price of materials supplied by Party A, Ruichang company makes different statements in different litigation stages in order to make up the total price of the project of 120 million yuan.

Entrusted agent ad litem: Dong cunzheng, lawyer of Beijing Tianchi Juntai (Chongqing) law firm.

2.

Legal representative: Cheng Xiaobo, general manager of the company.

Article 26 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 applies to illegal subcontracting and illegal subcontracting of construction projects, not to affiliated cases.

According to the common sense of daily life, the staff of the committee can not explain the composition of the contract price so clearly.

It has always denied the basic fact that Bai Deqiang is the actual constructor of the project involved in the case, made up the facts, reported a false case to the public security organ to suppress Bai Deqiang, and attempted to embezzle the project funds through the public security organ’s illegal intervention in economic disputes.

3.

On July 6, 2011, Ruichang company and CITIC company jointly sealed and confirmed the notice of direct contracting of Chongqing construction project with a contract amount of 65.8 million yuan and submitted it to Chongqing Wanzhou District public resources comprehensive trading center for filing.

The judgment of the first and second instance found that both parties performed a construction contract with a fixed total price of 90.55 million yuan, and judged that CITIC company and Ruichang company were liable for payment according to the contract.

The court accepted the case and formed a collegial panel to hear it according to law.

Entrusted agent ad litem: Ling Wei, lawyer of Sichuan Youdu law firm.

The third person in the first instance and the appellee in the second instance: Liu Yonggang, male, born on October 24, 1972, Han nationality, living in Wuhou District, Chengdu City, Sichuan Province.

In conclusion, Ruichang company applies for retrial in accordance with items 1, 2, 3 and 6 of article 200 of the Civil Procedure Law of the people’s Republic of China.

Affiliated means that the contractor lends the qualification to the actual constructor.

Bai Deqiang and CITIC Corporation have formed an affiliated relationship based on the internal contract signed.

1.

On December 12, 2018, the appraisal opinion issued by the judicial appraisal center of Southwest University of political science and law showed that the construction contract with a fixed total price of 90.55 million yuan was formed by copying, altering, printing and re copying on the basis of the construction contract with a contract price of 65.8 million yuan.

Entrusted agent ad litem: Zeng Yuzhen, lawyer of Chongqing hezong law firm.

In conclusion, the retrial reasons of Ruichang company are not tenable, and its retrial application shall be rejected.

Entrusted agent ad litem: Xu Jiangliu, lawyer of Shanghai Jianwei (Beijing) law firm.

Subcontracting means that the contractor generally transfers the rights and obligations of the project to the actual constructor after undertaking the project.

3.

2.

Entrusted agent ad litem: Teng Yanping, lawyer of Chongqing hezong law firm.

The trial of this case has been concluded.

Respondent (defendant of first instance and appellant of second instance): CITIC Guoan Construction Engineering Group Co., Ltd.

The retrial applicant Chongqing Ruichang Real Estate Co., Ltd.

Bai Deqiang submitted an opinion that the actual performance of the project involved in this case was the contract on May 13, 2011.

Ruichang company said that it was unreasonable to find the forgery of the contract when reviewing the application..

4.

The affiliated person in the affiliated relationship has generally participated in the bidding and contract signing stage, and even signed the construction contract with the employer in the name of the agent or representative of the affiliated person.

5.

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