The judge said that the selected article came from
In the contract volume of China court case No.2016, the author takes the case as a lesson and analyzes whether this typical agreement in the field of construction engineering is effective or not, which is also enlightening to similar cases.
Text/Zhou Huan Fangshan District People's Court
Source/China Court Case 20 16 Contract Dispute Volume China Legal Publishing House
primary facts
[Fangshan District People's Court of Beijing (20 14) No.06694, Zi Chu, Fang Min]
Plaintiff: Zhejiang Branch of Great Wall Financing Guarantee Co., Ltd.
Defendants: China Railway Construction Group Co., Ltd. Beijing Luqiao Branch (hereinafter referred to as Luqiao Branch) and China Railway Construction Group Co., Ltd. (hereinafter referred to as China Railway Construction Engineering Group)
On June 30th, 2009, 65438+February 30th, 2009, Fuzhou Metro Co., Ltd. (hereinafter referred to as Fuzhou Metro Company) signed a construction contract with China Railway Construction Engineering Group, and Fuzhou Metro Company contracted the civil works of Guangxu Station of Fuzhou Rail Transit 1 Line to China Railway Construction Engineering Group for construction. China Railway Construction Engineering Group entrusts its subordinate Luqiao Branch to be responsible for the specific construction of the project.
On 20 10, 10, Luqiao Branch and Zhejiang Huatie Foundation Engineering Co., Ltd. (now renamed as Zhejiang Huatie Construction Safety Technology Co., Ltd., hereinafter referred to as Huatie Company) signed a construction project subcontract (hereinafter referred to as the subcontract). According to the stipulations of the subcontract, Luqiao Branch contracted out the installation and removal of φ 609 steel support and steel connecting beam at Baihuting Station of Fuzhou Rail Transit 1 Line to Huatie Company for construction. The tentative project price was1868,000 yuan, the commencement time was subject to the official notice of the contractor, and the completion date was 201KLOC-0/year on April 30th.
The special terms and conditions of the subcontract stipulate that the time and method for the contractor to pay the project payment (progress payment) to the subcontractor are as follows:
Within 65,438+00 days after the employer pays the project payment (progress payment), the contractor shall pay the project payment (progress payment) to the subcontractor according to the proportion not exceeding that paid by the employer, with the deduction of 65,438+0. All taxes and fees paid by the Employer and relevant units for this project; 2. All expenses required for the contractor to handle the business on behalf of the subcontractor; 3. 1% of the project payment (or as agreed in the general contract) shall be used as the quality deposit. If a quality accident occurs due to the subcontractor during the construction, the deposit will not be paid to the subcontractor. If there is no quality accident, it will be returned without interest within 30 days after the project is accepted and completed by the Employer. 4. 1% of the project payment (or as agreed in the general contract) shall be used as the deposit. If a safety accident occurs due to the subcontractor during the construction, the deposit will not be paid to the subcontractor. If there is no safety accident, the deposit will be returned to the subcontractor without interest within 30 days after the completion of the project; 5. 3% of the project payment is used as the wage guarantee for migrant workers. If the subcontractor defaults on the wages of migrant workers during the construction process, the deposit will no longer be paid to the subcontractor, and will be returned without interest after the settlement of migrant workers' wages; 6. The project warranty gold 10% of the project payment, after the expiration of the warranty period, the contractor will pay the subcontractor in proportion after receiving the project warranty gold returned by the employer. The subcontract also stipulates other rights and obligations of both parties.
On February 20th, 20 12, Huatie Company signed the project inspection and valuation table with Luqiao Branch after completing the construction contents agreed in the subcontract, and settled the project. After settlement, both parties confirm that the project cost of Huatie Company is RMB; Deduction is 346,299 yuan, including quality deposit of 2,2741yuan, safety deposit of 2,2741yuan, wage deposit of migrant workers of 68,222 yuan, project warranty deposit of 227,407 yuan, work clothes of 525 yuan, safety helmet of 65,438 yuan +075 yuan, and electricity fee of 4,488 yuan. Luqiao Branch has paid 6,543,800 yuan+0,600 yuan to Huatie Company.
20 13 On February 24th, Huatie Company signed the Creditor's Rights Transfer Agreement with the plaintiff, stipulating that Huatie Company would transfer its creditor's rights to Luqiao Branch to the plaintiff. 20 14 1.2, huatie company mailed the notice of creditor's rights transfer to Luqiao branch.
Luqiao Branch said that Luqiao Branch did not complete the construction content agreed in the contract signed by China Railway Construction Engineering Group and Fuzhou Metro Company, and the unfinished project was contracted out to outsiders by Fuzhou Metro Company, and Luqiao Branch did not understand the current situation of the project; Luqiao Branch exited at the end of 20 12, and submitted the project completion settlement documents; Fuzhou Metro Company paid 50.69 million yuan according to the agreed schedule during the construction of Luqiao Branch, but it did not pay again after the withdrawal of Luqiao Branch; Fuzhou Metro Company has not settled the project payment with Luqiao Branch so far, and Luqiao Branch has been waiting for a reply, and has not claimed the project payment through means including litigation.
Case focus
Whether the agreement between China Railway Corporation and Luqiao Branch on the payment first by the owner is valid and its applicable conditions.
Referee points
The Fangshan District People's Court of Beijing held through trial that the subcontracting contract for construction projects signed by Huatie Company and Luqiao Branch and the creditor's rights transfer agreement signed by Huatie Company and Great Wall Financial Zhejiang Company did not violate the mandatory provisions of laws and administrative regulations and should be valid. After Huatie Company completes the relevant project construction as agreed, Luqiao Branch shall fulfill the payment obligation in time. The creditor's rights transfer agreement reached between Great Wall Financial Zhejiang Company and Huatie Company has been notified to Luqiao Branch, and Great Wall Financial Zhejiang Company has the right to ask Luqiao Branch to pay the project payment.
China Railway Corporation and Luqiao Branch have concluded a "payment schedule" in the subcontract.
Do not exceed the payment ratio paid by the Employer to the Contractor.
However, the agreement does not further clarify the relationship between the payment ratio of Luqiao Branch to China Railway Corporation and the payment ratio of the general contractor to Luqiao Branch. China Railway Corporation and Luqiao Branch agreed on the "payment time" in the subcontract.
Within 10 days after the employer pays the project payment.
",but Luqiao Branch did not provide evidence to prove that it settled the project with the general contractor, and the general contractor paid the project fee. Even if the situation described by Luqiao Branch is true, according to the facts, Luqiao Branch withdrew from the site at the end of 20 12 and provided settlement documents, but it still failed to reach an agreement with the general contractor on project settlement, and did not take or plan to take active and necessary measures to solve the problems of project settlement and project payment recourse. Luqiao Branch is slow to exercise relevant rights to the general contractor, and Great Wall Finance Zhejiang Company requires Luqiao Branch to pay the project payment, which is justified. The project payment paid by Luqiao Branch is deducted from the work clothes, safety helmet and electricity fee, and the quality deposit, safety deposit, migrant workers' salary deposit and project warranty deposit are no longer deducted. Luqiao Branch paid RMB for the project to Great Wall Finance Zhejiang Company. The interest loss claimed by Great Wall Financial Zhejiang Company shall be calculated by the court according to the interest rate standard of similar loans of the People's Bank of China for the same period from the date when Great Wall Financial Zhejiang Company brings a lawsuit to the date when this judgment comes into effect.
The Fangshan District People's Court of Beijing made the following judgment in accordance with Articles 60, 79, 80 and 107 of People's Republic of China (PRC) Contract Law, Article 17 of the Supreme People's Court's Interpretation on Applicable Legal Issues in the Trial of Construction Contract Disputes and Article 144 of People's Republic of China (PRC) Civil Procedure Law:
1. The defendant, Beijing Luqiao Branch of China Railway Construction Group Co., Ltd., paid the project payment of RMB 1208884.24 to Zhejiang Branch of Great Wall Finance Guarantee Co., Ltd. within ten days from the effective date of this judgment, and paid the interest of RMB 20 14 to the effective date of this judgment according to the interest rate standard of similar loans of China People's Bank.
Two. Other claims of Zhejiang Branch of Great Wall Financing Guarantee Co., Ltd. were rejected.
Neither defendant appealed, and the judgment has come into effect.
Judge's comments
In the subcontracting contract of construction projects, in order to avoid the legal risks caused by overdue payment to subcontractors, the general contractor often regards the payment of the construction unit as a prerequisite for its payment to subcontractors, stipulating that the general contractor will pay subcontractors only after the payment of the construction unit, and will not bear the liability for breach of contract for overdue payment. In practice, there are some disputes about the validity of the above agreement.
The negative point of view is that the agreement on this payment method should be an ambiguous clause. According to Item 4 of Article 62 of the Contract Law, the Subcontractor may demand performance at any time.
The author believes that "
After the employer pays, the general contractor will pay the subcontractor again.
"The agreement should be valid.
On the one hand, whether the construction unit pays the general contractor is an uncertain fact in the future, and the above agreement should be a civil legal act with termination conditions. Although there is no specific payment term, the intention of both parties to set restrictions on the payment of the general contractor is clear.
In addition, the above agreement is beneficial for the general contractor and subcontractors to share operational risks. Therefore, as long as it means that there are no other legal invalid reasons, the clause should be effective.
Considering that the above payment terms may be abused, certain conditions should be grasped when applying them.
First, we should take subcontracting as the premise. If the subcontract is confirmed invalid because it violates the mandatory provisions of laws and administrative regulations, the payment clause in the contract has no applicable basis.
Second, the general contractor should bear the burden of proof for the settlement and payment with the construction unit. Since the subcontractor has to bear the risk of not paying the project funds to the construction unit, he should have the right to know the payment situation of the construction unit. The general contractor has the obligation to provide the subcontractor with the relevant information about the settlement and payment of the project funds by the construction unit. If the general contractor cannot provide evidence or the evidence provided is insufficient to prove its claim, it shall bear the corresponding burden of proof, and the payment terms shall be deemed as completed.
Third, if the general contractor delays the settlement, fails to settle the account within a reasonable time, fails to claim the project payment from the construction unit, or the general contractor and the construction unit agree to postpone the payment. It can be presumed that the general contractor maliciously contributes to the non-conformity of the payment terms, which is regarded as the payment terms, and the general contractor shall pay the project money to the subcontractor.
In this case, Luqiao Branch did not provide evidence to prove that it had settled the project with the general contractor, and the general contractor paid the project money. According to the facts stated by Luqiao Branch, Luqiao Branch's delay in exercising its relevant rights to the general contractor shall be regarded as the achievement of its payment terms.