Viewpoint.......................................................................................
Published:
2022-12-14
1. Introduction In the field of construction bidding, the contractor's concession clause in the construction contract is usually considered invalid if it deviates from the substantive content of the bidding document. But in the case of illegal subcontracting of the project, illegal subcontracting, the contract itself is invalid because of the violation of the mandatory provisions of the law, then the invalid contract's concession settlement clause can also be used as a basis for settlement? 2. the relevant legal provisions on the invalidity of construction contracts, settlement clauses and the validity of the concession clauses therein. Article 793 of the Contract of the Civil Code The construction contract for a construction project is invalid, but if the construction project is accepted and accepted, the contractor may be compensated at a discount by reference to the contract's agreement on the price of the project. Interpretation of the Supreme People's Court on the Application of Law in the Trial of Disputes over Construction Contracts (I) Article 2 The construction contract for a construction project is invalid, but if the construction project has passed the completion and acceptance, and the contractor requests to pay the project price by reference to the contract, it shall be supported. Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Disputes over Construction Contracts (I) Article 4 The contractor's illegal subcontracting or illegal subcontracting of construction projects or the act of an unqualified actual builder signing a construction contract with another person in the name of a qualified construction enterprise is invalid. The people's court may, in accordance with the provisions of Article 134 of the General Principles of the Civil Law, confiscate the illegal gains already obtained by the parties. 3. case analysis The current laws and regulations and judicial interpretations have relatively clear provisions on the settlement clauses and concessions in construction contract disputes. However, in the physical object, whether the settlement clauses of invalid contracts can be used as the basis for the settlement of project funds and whether the concession agreement is effective, not only On the basis of legal provisions, it is necessary to combine relevant precedents in practice. After searching the opinions of the Supreme Court and the local courts, the Supreme Court and the local courts have different views on the issue of "the invalidity of the construction contract, the validity of the settlement clause and the concession clause therein: 1. Case No.:(2017) Supreme Famin Shen No. 4509 The Supreme Court's judgment point of view: Based on the actual situation of the case, the original judgment found that Kang Jiu Company received another 21% of the income due to illegal subcontracting in addition to the 10% management fee paid by the foreign language school according to the invalid "Investment and Construction Contract", which was a benefit based on the invalid contract and was against fairness. Accordingly, it was decided that the project funds involved in the case should be settled by 10% on the basis of the audit opinions. 2. Case No.:(2019) Supreme Law Minzong No. 1779 The Supreme Court's judgment point of view: it is determined that in the civil judgment No. 40 of Anhui Higher People's Court (2016) Wanminchu, the contract price is determined: the audit settlement price falls by 8%. First, the agreement is defined as the 8% management fee charged by the general contractor. Because the contract involved is invalid due to illegal subcontracting, the management fee is based on the actual performance of the contract in this case and other factors, adjust the 8 per cent downward float to 4 per cent according to the audit calculation price agreed by both parties. 3. Case No.:(2018) Supreme Famin Shen No. 4321 The Supreme People's Court referee's point of view: The Supplementary Agreement is a supplement to the Contract. Its content includes not only Nanfeng Company's efforts to strengthen the supervision of the project, but also Nanfeng Company's financial support for the construction of the project, thus obtaining a profit of 600000 yuan from the construction. The Court believes that the funds provided by Nanfeng Company are invalid construction contracts, so it cannot be considered that the part of the Supplementary Agreement on providing financial support for invalid contracts and obtaining concessions is valid, and the original trial is not improper in determining the validity of the Supplementary Agreement, and Nanfeng Company cannot claim concessions accordingly. 4. Case No.:(2018) Supreme Famin Shen No. 5332 Opinion of the Supreme Court: After examination, the Court believes that the construction contract signed by Juheng Company and Lanxin Company has a clear agreement on the downward floating ratio of the project payment settlement. Lanxin Company illegally subcontracted the road project to Juheng Company, which did not have the corresponding construction qualification, and the construction contract signed by both parties should be deemed invalid, but the project involved in the case has been completed and accepted. According to the provisions of Article 2 of the interpretation of the Supreme people's Court on the Application of legal issues in the trial of Construction contract disputes, the project payment shall be paid with reference to the contract. Therefore, the court of second instance shall pay the project in accordance with the floating proportion agreed by both parties, and the applicable law is not improper. 5. Case No.:(2021) Su 03 Min Zhong No. 9069 The judgment of Xuzhou Intermediate People's Court: Article 2 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Construction Contract Disputes stipulates that the construction contract of the construction project is invalid, but the construction project has passed the completion and acceptance, and the contractor requests to refer to the contract If the payment of the project price is agreed upon, it shall be supported. After investigation, the subcontracting agreement signed by both parties agreed: settlement of the project = the final audit report price (1-31%) approved by the audit department entrusted by the construction unit, and Wang Chunjin will bear any further downward float. The final price approved by the audit department entrusted by the construction unit is 11.2 per cent of the proceeds from the construction of the floating project, which is an agreement between the construction unit and the construction unit. The settlement amount of both parties shall be 31% down from the approved amount of 4991173.4 yuan, I .e. 3443909.65 yuan. Wang mou's claim that the approved amount will be lowered by 11.2 on top of 31% has no factual and legal basis, and this court will not support it. The claim of Xiangrui Company on the actual settlement is not in conformity with the settlement terms agreed in the contract, and the Court does not support it. 4. legal analysis According to Article 4 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Disputes over Construction Contracts, the scope of illegal income collected in this article shall, in accordance with the legislative intent of the Supreme People's Court, be the benefits obtained by the contractor as a result of illegal subcontracting or subcontracting; the benefits obtained by the construction person who does not have the legal qualification to sign the construction project contract by borrowing the qualification, but after the author searched the relevant cases of the courts at all levels, the actual court hearing cases, the parties have obtained the illegal income collection. In the above cases, regarding the determination of the validity of the concession agreement in the settlement clause, the judgment views of various courts are mixed. Some courts believe that the concession is due to the invalid contract of the subcontractor's profit, which is illegal profit and will not be supported. Some courts, from the perspective of fairness and justice, appropriately reduce or refuse to support the concession ratio in combination with the fault degree and actual participation of the parties in the case. Some courts, considering that the settlement clause is the true meaning of the parties, refer to the contract. In the sixth case mentioned above (case No.:(2021) Su 03 Min Zhong No. 9069), the plaintiff claimed that the price of the project payment obtained from the concession clause in the contract was lower than the construction cost of the actual builder, which was contrary to the principle of fairness and justice. Wang made huge profits for nothing, seriously increased the losses of the actual builder, and violated the legislative intent of the relevant laws on construction projects to safeguard the interests of the actual builder. However, the actual construction person did not provide the individual cost of the enterprise, can not prove that the settlement price is lower than the actual construction cost, the court did not support, but determined that based on the true intention of the two sides agreed 31% concession agreement as the basis for settlement. The author believes that after the promulgation of the Civil Code, the judgment rules of the courts basically tend to refer to the contract agreement: although the construction contract is invalid, if the parties actually perform the contract, the contract is the true intention of the parties, and the concession is not an integral part of the project cost, then the concession clause in the contract constitutes the settlement clause and should be settled with reference to this clause. That is to say, the actual effect of such concession clauses in the settlement of the project is basically recognized, and should be combined with the specific circumstances of the case and the relevant regional regulations.
1. Introduction
In the field of construction bidding, the contractor's concession clause in the construction contract is usually considered invalid if it deviates from the substantive content of the bidding document. But in the case of illegal subcontracting of the project, illegal subcontracting, the contract itself is invalid because of the violation of the mandatory provisions of the law, then the invalid contract's concession settlement clause can also be used as a basis for settlement?
2. the relevant legal provisions on the invalidity of construction contracts, settlement clauses and the validity of the concession clauses therein.
Article 793 of the Contract of the Civil Code The construction contract for a construction project is invalid, but if the construction project is accepted and accepted, the contractor may be compensated at a discount by reference to the contract's agreement on the price of the project.
Interpretation of the Supreme People's Court on the Application of Law in the Trial of Disputes over Construction Contracts (I) Article 2 The construction contract for a construction project is invalid, but if the construction project has passed the completion and acceptance, and the contractor requests to pay the project price by reference to the contract, it shall be supported.
Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Disputes over Construction Contracts (I) Article 4 The contractor's illegal subcontracting or illegal subcontracting of construction projects or the act of an unqualified actual builder signing a construction contract with another person in the name of a qualified construction enterprise is invalid. The people's court may, in accordance with the provisions of Article 134 of the General Principles of the Civil Law, confiscate the illegal gains already obtained by the parties.
3. case analysis
The current laws and regulations and judicial interpretations have relatively clear provisions on the settlement clauses and concessions in construction contract disputes. However, in the physical object, whether the settlement clauses of invalid contracts can be used as the basis for the settlement of project funds and whether the concession agreement is effective, not only On the basis of legal provisions, it is necessary to combine relevant precedents in practice.
After searching the opinions of the Supreme Court and the local courts, the Supreme Court and the local courts have different views on the issue of "the invalidity of the construction contract, the validity of the settlement clause and the concession clause therein:
1. Case No.:(2017) Supreme Famin Shen No. 4509
The Supreme Court's judgment point of view: Based on the actual situation of the case, the original judgment found that Kang Jiu Company received another 21% of the income due to illegal subcontracting in addition to the 10% management fee paid by the foreign language school according to the invalid "Investment and Construction Contract", which was a benefit based on the invalid contract and was against fairness. Accordingly, it was decided that the project funds involved in the case should be settled by 10% on the basis of the audit opinions.
2. Case No.:(2019) Supreme Law Minzong No. 1779
The Supreme Court's judgment point of view: it is determined that in the civil judgment No. 40 of Anhui Higher People's Court (2016) Wanminchu, the contract price is determined: the audit settlement price falls by 8%. First, the agreement is defined as the 8% management fee charged by the general contractor. Because the contract involved is invalid due to illegal subcontracting, the management fee is based on the actual performance of the contract in this case and other factors, adjust the 8 per cent downward float to 4 per cent according to the audit calculation price agreed by both parties.
3. Case No.:(2018) Supreme Famin Shen No. 4321
The Supreme People's Court referee's point of view: The Supplementary Agreement is a supplement to the Contract. Its content includes not only Nanfeng Company's efforts to strengthen the supervision of the project, but also Nanfeng Company's financial support for the construction of the project, thus obtaining a profit of 600000 yuan from the construction. The Court believes that the funds provided by Nanfeng Company are invalid construction contracts, so it cannot be considered that the part of the Supplementary Agreement on providing financial support for invalid contracts and obtaining concessions is valid, and the original trial is not improper in determining the validity of the Supplementary Agreement, and Nanfeng Company cannot claim concessions accordingly.
4. Case No.:(2018) Supreme Famin Shen No. 5332
Opinion of the Supreme Court: After examination, the Court believes that the construction contract signed by Juheng Company and Lanxin Company has a clear agreement on the downward floating ratio of the project payment settlement. Lanxin Company illegally subcontracted the road project to Juheng Company, which did not have the corresponding construction qualification, and the construction contract signed by both parties should be deemed invalid, but the project involved in the case has been completed and accepted. According to the provisions of Article 2 of the interpretation of the Supreme people's Court on the Application of legal issues in the trial of Construction contract disputes, the project payment shall be paid with reference to the contract. Therefore, the court of second instance shall pay the project in accordance with the floating proportion agreed by both parties, and the applicable law is not improper.
5. Case No.:(2021) Su 03 Min Zhong No. 9069
The judgment of Xuzhou Intermediate People's Court: Article 2 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Construction Contract Disputes stipulates that the construction contract of the construction project is invalid, but the construction project has passed the completion and acceptance, and the contractor requests to refer to the contract If the payment of the project price is agreed upon, it shall be supported. After investigation, the subcontracting agreement signed by both parties agreed: settlement of the project = the final audit report price (1-31%) approved by the audit department entrusted by the construction unit, and Wang Chunjin will bear any further downward float. The final price approved by the audit department entrusted by the construction unit is 11.2 per cent of the proceeds from the construction of the floating project, which is an agreement between the construction unit and the construction unit. The settlement amount of both parties shall be 31% down from the approved amount of 4991173.4 yuan, I .e. 3443909.65 yuan. Wang mou's claim that the approved amount will be lowered by 11.2 on top of 31% has no factual and legal basis, and this court will not support it. The claim of Xiangrui Company on the actual settlement is not in conformity with the settlement terms agreed in the contract, and the Court does not support it.
4. legal analysis
According to Article 4 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Disputes over Construction Contracts, the scope of illegal income collected in this article shall, in accordance with the legislative intent of the Supreme People's Court, be the benefits obtained by the contractor as a result of illegal subcontracting or subcontracting; the benefits obtained by the construction person who does not have the legal qualification to sign the construction project contract by borrowing the qualification, but after the author searched the relevant cases of the courts at all levels, the actual court hearing cases, the parties have obtained the illegal income collection.
In the above cases, regarding the determination of the validity of the concession agreement in the settlement clause, the judgment views of various courts are mixed. Some courts believe that the concession is due to the invalid contract of the subcontractor's profit, which is illegal profit and will not be supported. Some courts, from the perspective of fairness and justice, appropriately reduce or refuse to support the concession ratio in combination with the fault degree and actual participation of the parties in the case. Some courts, considering that the settlement clause is the true meaning of the parties, refer to the contract.
In the sixth case mentioned above (case No.:(2021) Su 03 Min Zhong No. 9069), the plaintiff claimed that the price of the project payment obtained from the concession clause in the contract was lower than the construction cost of the actual builder, which was contrary to the principle of fairness and justice. Wang made huge profits for nothing, seriously increased the losses of the actual builder, and violated the legislative intent of the relevant laws on construction projects to safeguard the interests of the actual builder. However, the actual construction person did not provide the individual cost of the enterprise, can not prove that the settlement price is lower than the actual construction cost, the court did not support, but determined that based on the true intention of the two sides agreed 31% concession agreement as the basis for settlement.
The author believes that after the promulgation of the Civil Code, the judgment rules of the courts basically tend to refer to the contract agreement: although the construction contract is invalid, if the parties actually perform the contract, the contract is the true intention of the parties, and the concession is not an integral part of the project cost, then the concession clause in the contract constitutes the settlement clause and should be settled with reference to this clause. That is to say, the actual effect of such concession clauses in the settlement of the project is basically recognized, and should be combined with the specific circumstances of the case and the relevant regional regulations.
Key words:
Concession, contract, construction, settlement, invalidity, agreement, construction, terms, engineering.
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