Case type: Lawyer case

 

Business category: Construction contract disputes

 

The court's judgment time: April 30, 2019

 

Name of the court: Jiangsu Higher People's Court

 

Name of Attorney: Hua Hongqun, Chu Dongyun

 

Law Firm Name: Jiangsu Xingao Law Firm

 

Contribution: Real Estate and Construction Engineering Group

 

Search key words: civil, construction real estate, litigation

 

[Case Brief]

 

6On June 15, 2013, Shenli Company and Liujian Company signed an "Agreement" on the project involved without tendering, and Shenli contracted the project to Liujian Company for construction. Sixth Construction Company agreed to advance the project funds to the ceiling of the project structure. For this reason, the total settlement price increased by 2.5%. 15 days after the structure was capped, the project payment was started.

 

 On June 20, 2013, Liujian Construction Company entered the site for construction and set up temporary facilities (construction sheds). On July 1, the construction road was poured. On July 26th, Wuxi City Surveying and Mapping Institute entered the site and staked out eight houses in the West District for the first phase of construction.

 

During the construction of Liuliu Construction Company, due to the need for the record of construction contract, Shenli Company went through the bidding process under the leadership of Liuliu Construction Company. Specifically, the tender documents were issued in July. The two construction companies, Nantong Wujian and Fuyuanguang, were recommended by Liujian Company to accompany the tender. The winning documents were sent on August 12, and were independently written and printed by Liujian on August 19. The construction contract allows Shenli Company to directly seal it and send it to the government for the record.

 

The project is planned to be organized in three phases. The first phase consists of 4 units in the western district, the second phase consists of 20 units in the western district, and the third stage consists of 14 units in the eastern district.

 

监 On August 27th, the supervisor entered the site and the foundation construction of the A1 building has begun on September 13.

 

In actual construction, the first phase started with 8 units in the Western District, and the 16 phase 2 units in the second phase should be started before October 18, 2013. In fact, only part of the excavation was carried out, and another part was from late October to 11 Excavated early in the month. As of December 5, 2013, 10 of the 16 monomers that have started in the second phase have not started. The original plans for the 14 units in the eastern part of the third phase should have started before November 17th, and all of the six constructions did not start on schedule. The main reasons are the lack of personnel, the on-site management confusion, the unqualified materials, non-conformity of the construction process, and many problems in construction quality. The project was stopped by the supervisor and the materials were required to leave the site. The construction period has been seriously delayed.

 

Considering the construction capacity of Liujian Company, it is impossible to guarantee the completion of all the projects on schedule. Shenli Company had to consider the need to replace the construction team in the Eastern District. To this end, on December 5, 2013, it was decided that all of the Eastern District of Liujian Company that had not started construction was temporarily Not working.

 

六 From December 16th to 22nd, 2013, Liujian started construction on 6 units in the second phase.

 

From January 23rd to 28th, 2014 (before the Spring Festival), Liujian Construction Co., Ltd. proposed a payment of 20 million yuan in advance for the project funds (the contract stipulates that Liujian advances the project funds to the cap of the project structure, all of which are 15 days after capping (Began to pay for the project), organized migrant workers and social miscellaneous personnel to cause trouble, and finally failed to do so, Shenli was forced to pay more than 6 million yuan to resolve the trouble.

 

After negotiation between the two parties, on March 13, 2014, the two sides reached an agreement on the separate arrangement of the construction team in the Eastern District. On March 26, a supplementary agreement was signed, stipulating that the Shenli Company should be designated by others for the construction of the Eastern District. Contract Construction Development Co., Ltd. On April 17, the three parties signed a related agreement. Later, Shanghai Hancheng Construction Development Co., Ltd. entered the construction site.

 

Altogether, Liuliujian has been delayed by more than 210 days compared to the planned start date of October 18, 2013. Caused huge losses to Shenli.

 

On October 12, 2014, due to the serious construction delay of Liujian Company, and Liujian Company delaying the construction on the grounds that it did not give money, it had to delay construction. On the basis of the payment of 17.61 million yuan, the two parties signed a supplementary agreement. , Adjust the payment time. At the same time, the agreement reaffirmed the completion requirements on December 28, 2014 and January 28, 2015.

 

However, the 11 # building was originally a rebar operating site. Due to the construction period of Liujian Company, overnight excavation caused the foundation to shift to a pile position of 1.2 meters. On November 17, 2014, Wuxi Surveying and Mapping Institute found this error during the retest and reported it to Shenli Company. Shenli requested Liujian Company to deal with it. In order to evade responsibility, Liujian Company went to the design unit to make up a project contact form privately after the incident (November).

 

Because of the poor construction of Liujian Company, the project was not completed by the agreed time, and construction continued in 2015. At the same time, due to the relocation of the 11 # building, the planning could not be properly accepted. After coordination by Shenli Company, it was only possible to pass the planning acceptance by a fine of 111,250 yuan. The project was finally completed and accepted on January 27, 2016. It was 423 days longer than originally planned on November 30, 2014.

 

[Agent opinion]

 

(1) The facts of the first-instance judgment are unclear and incorrect.

 

Many facts were not found out in the first instance judgment, and the facts were found to be obviously wrong, which led to the wrong result of the first instance judgment.

 

(2) The judgment of the first instance was wrong in determining the validity of the relevant contract. The agreement on June 15, 2013 and the contract on August 19, 2013 should both be invalid contracts.

 

1. The project involved in the case is a project that requires bidding, and no contract can be issued without bidding.

 

On June 15, 2013, the "Agreement" signed by Shenli Company and Liujian Company on the project involved without bidding violated the Law of the People's Republic of China on Tendering and Bidding and the State Planning Commission's regulations on the scope of tendering. Invalid contract.

 

2. After the actual constructor entered the construction site, the two parties went through the bidding process under the leadership of Liujian Company for the purpose of project filing. Through colluding with the bidder, they obtained a false bidding notice and signed August 19 for the record only. Construction contract. The construction contract on August 19 also violated the provisions of the "Tendering and Bidding Law of the People's Republic of China" and was invalid.

 

23. The court of first instance found that the fact of the delay in the construction period was wrong, and the responsibility for the delay in construction period lies with Liujian Company. Liujian Company should compensate Shenli for the losses caused by the delay in the construction period.

 

(1) Sixth Construction Company failed to start construction at the scheduled time.

 

The construction plan clarified the construction of the project in three phases, and stipulated the start time of each individual unit. However, due to the weak construction, insufficient staff, and chaotic management of the Sixth Construction Company, the fact that there was a serious overtime start in the second phase only, the longest The delay was 215 days.

 

怎么 How to ensure completion on schedule if it has not started on schedule.

 

二 (2) From the supervision data and relevant evidence of the project involved, it can be seen that during the construction process of Liujian Company, there are a lot of facts that cause the project to fail to run normally, which directly leads to project delays:

 

①Material of entry—disqualifications such as steel bars and steels are required to leave the venue, which has occurred many times, and even all materials have been required to leave the venue, and some secondary re-inspections have failed to meet the standard;

 

② The construction quality is not required to be reworked. When asked to reply, Liu Jian Company even ignored it and continued construction;

 

③ Unauthorized construction is required to be suspended for rectification. Some processes were suspended for as long as half a month and occurred many times.

 

④ Problems in the arrangement of construction personnel, lack of construction personnel, etc. cause the construction progress to be delayed, and the management personnel's own quality can not reach the management of the project (the fact is also recognized in the letter of commitment from Liujian Company to Shenli), etc. the reason.

 

The above facts can be proved in the evidence collated in the second trial of Shenli Company. These reasons will inevitably lead to the delay of the construction period, and Liu Jian Company shall bear corresponding responsibility for its own fault.

 

(3) Liujian Company misplaced on 11 # and failed to pass the mapping, which directly caused the project to fail the planning acceptance. The first instance also determined that the error was the cause of the delay in completion and acceptance, but Liujian Company's absence of responsibility was wrong.

 

When Liujian Company started construction at 11 #, during the night construction period to rush the construction period, the axis was shifted 1.2 meters to the south during the positioning and laying of the line and the foundation excavation. As a result, the project failed to pass the surveying, mapping, and planning acceptance, which directly led to the delay in completion. .

 

(4) The judgment of the first instance found that the completion of the construction of Liujian Company on December 28, 2014 was wrong and did not conform to the facts.

 

的 The image progress of December 2014 cannot prove that Liujian Company basically completed all the contract contents on December 28.

 

Basic completion is not complete, and the construction company cannot be exempted from the responsibility of completing all construction and having the completion acceptance conditions. Completion acceptance is all completed and the self-inspection meets the requirements before applying. The judgment of the first instance was deemed completely wrong to have the completion acceptance conditions based on the so-called basic completion.

 

(5) There is no evidence to prove the fact that Shenli Company has a delay in construction period.

 

The judgment in the first instance judged that a large number of related design changes, power company construction and additional fire protection projects caused delays in completion and acceptance.

 

中 In this case, there is no fact of a large number of design changes, and there is no evidence to prove how long a large number of design changes caused the completion and acceptance of the project.

 

进 The power company's approach construction and fire protection construction are normal engineering constructions. Any project has power engineering and fire protection engineering. In this case, there is no evidence to prove that the power and fire protection construction was delayed, which led to the delay of completion acceptance.

 

(6) The judgment of the first instance was wrong to use the agreement of Agreement III, which was finally formed on October 12, 2014, as the time for completion.

 

The contract stipulates that all the projects will be completed on November 30, 2014, because the six construction companies have been severely behind schedule and unable to complete the construction on schedule, the two parties only reached an agreement on completion and acceptance on January 28, 2015. If the project must be completed in the end, the time for completion should not be denied because of the adjustment of the completion time of the project caused by Liujian's breach of contract.

 

In this case, the original project scope was 50% more than the actual construction scope of Liujian Construction. After 14 units in the Eastern District were handed over to a third person for construction, under normal circumstances, Liujian Construction Company should be months before November 30, 2014 as stipulated in the contract. It should be completed and delivered. Shenli claims that the completion date is November 30, 2014, which has greatly reduced the requirements.

 

25. The losses claimed by the appellant Shenli Company to Liujian Company are well founded in law and reason.

 

1. Legal basis: Article 3 of the "Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Construction Project Construction Contract Dispute Cases (II)", "If a construction project construction contract is invalid and one party requests the other party to compensate for the loss, it shall The burden of proof is on the magnitude of the loss, the causal relationship between the fault and the loss. " In this case, Shenli Co., Ltd. has provided evidence to prove that the construction period was delayed and the project was completed and accepted for inspection. In this regard, Liujian Company should bear Shenli's liability for damages.

 

2. Shenli's claim for compensation for losses is legal and reasonable.

 

The actual contract performed by the parties involved (January 13, 2017, transcript, page 3, line 7) was the Agreement on June 15, 2013, and the agreed completion date was November 30, 2014. The construction company shall compensate Shenli Company for the losses due to the actual completion time.

 

3. The administrative penalty of 111,300 yuan paid for the 11 # building that does not meet the planning permission due to the 1.2 m shift of the axis shall be borne by Liujian Company.

 

The axis shift of the 11 # building was caused by Liujian ’s own wrong construction, not what it said was a change made by both parties through technical approval orders. The error was discovered by the Surveying and Mapping Institute during surveying and mapping. At this time, Shenli and The supervisor was aware of this. Later, the supervision unit sent letters repeatedly asking Liujian Company to solve it, but Liujian Company has not solved it, not only did not acknowledge it, but also tried to conceal the truth through self-made technology verification orders. For the project acceptance of Shenli Company, this problem can only be resolved through administrative penalties, and the fine should be borne by Liujian Company.

 

Six, six construction companies in the 111 days from December 5, 2013 to March 26, 2014, there is no fact of nest work, no loss, the court of first instance determined that Shenli should pay six construction company to stop the nest The work loss of 3,0224.144 yuan was completely wrong.

 

Before the Spring Festival, Shenli Company had made it clear that another part of the eastern part of the third phase will be arranged for construction by others. The two parties are negotiating how to sign a supplementary agreement. After the Spring Festival, Shenli did not notify Liujian Company to start the construction of the eastern part of the third phase. The fact that there is no more construction, there is no such thing as hiring additional staff for the construction of the Eastern District after the Spring Festival, which led to the suspension of nest work.

 

In summary, Shenli Company ’s request for the temporary suspension of the construction of the Eastern District did not cause any facts and losses of nest workers to Liujian Company. During the period from December 5, 2013 to March 26, 2014, six It was absurd that Jianli Company decided to pay 3.02 million yuan in damages for the loss of nest workers in the eastern district, and the fact that there was no loss of nest workers.

 

In addition, with regard to the loss of nest workers during this period, Liujian Company deducted 30 days of the Spring Festival holiday on its own. It only claimed 82 days, but the judgment of the first trial still exceeded Liujian's petition, and 111 days were sentenced. Loss.

 

[Judgment result]

 

Qi Shenli's grounds for appealing that there were no losses of nest workers in Nantong Liujian Construction were established and should be supported.

 

[Judgement Document]

 

The focus of the dispute in the second instance of this case is: 1. How to determine the effectiveness of the three-point agreement and three construction contracts signed by the parties on the project involved; 2. Whether Nantong Sixth Construction should bear the delay of the construction period and are afraid of daily liabilities. 3. Whether Shenli Company should compensate Nantong Liujian for a total of 111 days of work stoppage losses from December 5, 2013 to March 26, 2014.

 

In our opinion, regarding the first focus of the dispute, on June 15, 2013, Shenli Company signed an agreement with Nantong Liujian, and after bidding, it signed a construction contract filed on August 19, 2013, and two construction contracts were contracted. The scope was adjusted from "civil engineering, hydropower installation, municipal engineering, fire protection (excluding greening landscapes, aluminum alloy doors and windows)" to "general contracting for civil engineering, installation, outdoor roads and rainwater and sewage engineering construction departments"; as the scope of the contract increased, The construction period was correspondingly extended from 510 days to 700 days (the start date is agreed on the start order), and the contract price was correspondingly increased from 90 million (tentative) to 110817018 yuan; and the advancement, settlement method, and project price of the construction party The same agreement has been made in terms of the floating ratio, payment method and payment node, so the two construction contracts should not be deemed to constitute a substantial change. The construction start date, the planned completion date, and the construction period stated in the construction start report on October 1, 2013 are consistent with the record contract. When the two parties signed the supplementary agreement on March 26, 2014, they also made supplementary agreements on civil engineering installation and outdoor roads, rainwater engineering, and fire protection engineering in the eastern district on the basis of the record contract. Therefore, according to the signing and performance of the contract, the court of first instance determined that the record contract was not only used to handle recruitment.