Applicant for retrial (defendant of first instance, counterclaim plaintiff and appellant of second instance): Sichuan Xiteng Construction Group Co., Ltd., with a short domicile.
Legal Representative: Chen Gang, general manager.
Entrusted agent ad litem: omitted.
Entrusted agent ad litem: omitted.
Applicants for retrial (plaintiff of first instance, counterclaim defendant, appellant of second instance): Fu Decheng, briefly.
Entrusted agent ad litem: omitted.
Respondent (plaintiff of first instance, counterclaim defendant, appellee of second instance): Zhang Shufeng, briefly describing the basic situation.
Entrusted agent ad litem: omitted.
Respondent (defendant in the first instance and appellee in the second instance): Chen Yue, with a brief introduction.
The third party of the first instance: Amdo County People's Government, Naqu City, Xizang Autonomous Region, with a short domicile.
Legal Representative: Zahi Bing Zo, county magistrate.
Entrusted agent ad litem: omitted.
The retrial applicants Sichuan Xiteng Construction Group Co., Ltd. (hereinafter referred to as Xiteng Company), Fude Chuangshi and the respondents Zhang Shufeng and Chen Yue, and the third Amdo County People's Government (hereinafter referred to as Amdo County Government) refused to accept the civil judgment of Xizang Autonomous Region Higher People's Court (202 1) and applied to our hospital for retrial. On August 8th, 20021,our hospital made (202 1) the Supreme People's Court No.4378 civil ruling and sent it back for retrial. Our court formed a collegial panel according to law and heard the case in court. Chen Gang, the legal representative of Xiteng Company, the retrial applicant, and his agents ad litem Zhang Cong, Li Siliang, Fu Decheng and Yang Li appeared in court to participate in the lawsuit, but Zhang Shufeng, Chen Yue and Amdo county governments failed to appear in court after being summoned by our court, and our court conducted a trial by default according to law. The case has now been closed.
Xiteng Company's retrial request: 1. Request to cancel the original civil judgments of the first and second instance, send them back for retrial or change their judgments to reject all the claims of Fu Decheng and Zhang Shufeng, and pay Xiteng Company 4 million yuan for engineering maintenance and 250,000 yuan for materials; 2. The fees for accepting cases in the first and second instance shall be borne by Fu Decheng and Zhang Shufeng. Facts and reasons: (1) The original judgment found that Xiteng Company should pay the remaining project price of RMB to Fu Decheng and Zhang Shufeng, which was proved by lack of evidence, and the applicable law was wrong. 1. Xiteng Company has paid all the project funds (after tax) allocated by the owner to Fu Decheng and Zhang Shufeng, and Fu Decheng and Zhang Shufeng have no right to ask Xiteng Company to pay the project funds. 2. The total cost of the project and the evidence paid in the original judgment are insufficient. (1) The main evidence of the facts ascertained in the original judgment was not cross-examined. Items 5 and 7 to 10 of the appraisal basis have never appeared in the trial, and the above evidence has not appeared in the evidence listed in the first-instance judgment. The above evidence has not been cross-examined, and the court of second instance has not supplemented the cross-examination. The evidence is doubtful and cannot be used as the basis for deciding a case. (2) The Appraisal Opinions on the Construction Cost of Heating, Water Supply and (Phase II) Water Supply and Drainage Pipe Network in Amdo County, Naqu City (hereinafter referred to as the Appraisal Opinions) states that "departments and units will increase the cost of removing and repairing the pavement", but according to the feedback from appraisal institutions, it can be concluded that this part of the cost is completely unfounded, which is completely the statement of Fu Decheng and Zhang Shufeng. (3) In the appraisal opinion, it is stated that the cost of the demolition and repair project of the hardened pavement of Shenyang South Road is RMB, and in the annotation part, Article 3 states that this single item shall be decided by the court. This item does contain the number of some supplementary agreements. Only by comparing with the original data of the over-control audit can we distinguish the specific duplication, but the court of first instance did not investigate and collect it. (4) Xiteng Company applied for an investigation order twice in writing, but neither the court of first instance nor the court of second instance investigated and collected it. 3. The court of first instance made mistakes in the determination of the amount that should be deducted, such as quality guarantee money, taxes and repair fees, and the amount paid in this case. (2) The original judgment only confirmed the nature of the deposit of 3 million yuan based on the oral statements of Fu Decheng and Zhang Shufeng, and found that the fact that Fu Decheng and Zhang Shufeng actually delivered the money lacked evidence. (3) the original judgment exceeds the judgment of the claim. XiTeng Company didn't ask for the management fee of 472,000 yuan in counterclaim, but the original judgment of Fu Decheng and Zhang Shufeng paid XiTeng Company 472,000 yuan, which exceeded the claim.
Fu Decheng argued that Xiteng Company's retrial request could not be established. (a) whether the result of the appraisal opinion is correct or not, the final decision should be based on the appraisal result. 1. The materials on which the judicial expertise was based were obtained by the court of first instance from Xiteng Company's Tibet office and cross-examined in court. In the process of judicial appraisal, Xiteng Company did not put forward any opinions on the cross-examination of materials, nor did it apply for re-appraisal. It only puts forward the so-called opinion when it finds that the appraisal result is unfavorable. 2. The supplementary agreement only includes two items: pavement restoration and widening of Shenyang South Road and street lamp installation of Shenyang South Road and Shenyang North Road. The content identified as belonging to the main contract has nothing to do with the project agreed in the supplementary agreement. 3. The projects in the main contract and supplementary agreement are all completed by Fu Decheng and others, and they enjoy the project payment for the two projects. Even if the main contract involves a small number of supplementary agreements, it can be deducted during the final settlement and audit of the two projects. (2) Xiteng Company shall not deduct the quality deposit, repair fees and taxes when paying the balance of the project to Fu Decheng, and shall also refund the deposit and management fee to Fu Decheng. (three) the original judgment did not deal with the appraisal fee. Other opinions are the same as the retrial request and reasons.
Fu Decheng's retrial request: 1. Cancel the fourth item of the Xizang Autonomous Region Higher People's Court's (202 1) Tibetan People's Final No.3 civil judgment, and judge Xiteng Company to refund the 200,000 yuan paid by Fu Decheng before, and Xiteng Company to pay the pavement repair project of Shenyang South Road; 2. Cancel the third item of the Xizang Autonomous Region Higher People's Court's (202 1) Tibetan People's Final No.3 civil judgment, and decide that Fu Decheng will not pay the maintenance fee, data fee and management fee to Xiteng Company, and Xiteng Company will refund Fu Decheng the management fee of 472,000 yuan; 3. The litigation costs of the first and second trials shall be borne by Xiteng Company. Facts and reasons: (1) The relationship between the two parties is subcontracting, not affiliated or borrowed. (2) There is no basis for Xiteng Company to charge management fees. Haitong Company did not produce any evidence to prove that it fulfilled its management obligations. The subcontract between the two parties is invalid, and the agreed management fee clause is also invalid. Moreover, in the process of project construction and appropriation, Xiteng Company deducted the project payment, which seriously affected the normal construction of Fudecheng. (3) The project cost of the "Shenyang South Road Pavement Demolition and Repair Project" in the appraisal opinion is correct, and the "Shenyang South Road Pavement Repair Project" agreed in the main contract does not conflict with the subsequent "Shenyang South Road Supplementary Agreement". Although they are aimed at the same road, they belong to two different concepts, independence and non-interference. (4) Xiteng Company failed to provide relevant evidence to prove the authenticity of the rework and maintenance of the project involved and related expenses.
Xiteng Company argued that Fu Decheng's retrial request could not be established and should be rejected. The relationship between Xiteng Company and Fudecheng is affiliated, and it has no right to ask the affiliated person to pay the project payment without misappropriation by the owner. The forensic materials have not been cross-examined, and the difference between the appraisal conclusion and the government's over-control audit is1.20 thousand yuan, so the project cost involved in Shenyang South Road in the supplementary agreement should be deducted. Both parties agreed that Fu Decheng would not pay the deposit and the management fee of 3 million yuan would not be refunded. Other opinions are the same as the retrial request and reasons.
The Amdo county government submitted a written opinion that the appraisal opinion is far from the quantities approved by the Amdo county government organization Xiteng Company and Sichuan Chuanzi Construction Engineering Consulting Co., Ltd. First of all, the quantities identified in the appraisal opinion are inconsistent with the field quantities. If the length of the drainage pipe is specified in the appraisal opinion, the actual construction length on site is only 2437 meters. Secondly, Amdo county government will not recognize the accounting changes and technical verification in the appraisal opinions. Thirdly, this appraisal opinion is the product of litigation between Xiteng Company and Fu Decheng, which is not recognized by Amdo County Government and cannot be used as the basis for reconciliation between Amdo County Government and Xiteng Company. Finally, whether the relationship between Xiteng Company and Fudecheng is affiliated or entrusted does not affect the reconciliation between Amdo County Government and Xiteng Company.
Respondents Zhang Shufeng and Chen Yue did not submit their opinions.
Our court found through retrial that items 5, 7, 8, 9 and 10 of the second part of the appraisal opinion were not cross-examined according to law.
We believe that the relevant appraisal materials in the appraisal opinions on which the original judgment determined the project cost involved have not been cross-examined according to law, which seriously violates legal procedures. Items 5, 7, 8, 9 and 10 of the appraisal opinion are the basic data for the appraisal agency to determine the project price. The court of first instance transferred the disputed appraisal materials to the appraisal institution without cross-examination, and the court of second instance of first instance did not conduct supplementary cross-examination, which illegally deprived the parties of their right to debate and did not conform to the principle of civil litigation debate. Due to the lack of cross-examination of relevant appraisal materials, the court of first instance found that the corresponding engineering costs such as "the demolition and repair of the hardened pavement on Shenyang South Road" and "the demolition and repair of the hardened pavement in the hospital of government agencies" were insufficient, which led to unclear basic facts. In addition, the court of first instance also found that management fees, taxes and fees, appraisal fees and other issues were not properly applied. According to the Civil Procedure Law of People's Republic of China (PRC), the ruling is as follows:
1. Revoke the civil judgments of Xizang Autonomous Region Higher People's Court (202 1) Zangminzhong No.3 and Xizang Autonomous Region Naqu Intermediate People's Court (20 19) Zangminchu No.24 13;
Two. The case was sent back to the Intermediate People's Court of Naqu City, Xizang Autonomous Region for retrial.
April 28(th), 2002
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