Court: Intermediate People's Court of Tieling City, Liaoning Province
Case number: (20 15) Tiemin Yizhong. 00 185
Appellant (defendant in the original trial): Tieling Nanguang Real Estate Development Co., Ltd., whose domicile is Wen Zhuangzi Sub-branch of Tieling Economic Development Zone.
Legal Representative: Jia Dehui, manager of this company.
Authorized Agent: Shou, lawyer of Liaoning Yipin Law Firm.
Authorized Agent: Zhou, deputy manager of this company.
Appellee (plaintiff in the original trial): Shenyang Pengyuntong Material Distribution Office (a sole proprietorship enterprise), whose domicile isNo. Huaihe South Street 15, Huanggu District, Shenyang.
Person in charge: Chen Hongwei, manager of this company.
Authorized Agent: Lv Xiang, lawyer of Liaoning Shenzhou Law Firm.
The third person in the original trial: Yu You, male, born in 1954, Han nationality, living in Shuangta District, Chaoyang City.
The third person in the original trial: Liaoning Haichuan Construction Co., Ltd., a delegation from Fuzhou No.2, Chengnan Street, Tieling Economic Development Zone.
Legal Representative: Xinmeile Co., Ltd., manager of this company.
The appellant Tieling Nanguanguang Real Estate Development Co., Ltd. refused to accept the civil judgment of Tieling Yinzhou District People's Court (20 14) Tiekaimin Erchuzi No. 00 106 case of sales contract dispute, and appealed to our court. Our court formed a collegial panel according to law and heard the case in public. Appellants Shou and Zhou, entrusted agents of Tielingnan Guanguang Real Estate Development Co., Ltd., Lv Xiang, entrusted agent of Appellee Shen Yangpeng Yuntong Material Distribution Department, and Yu You, the third person in the original trial, attended the proceedings in court. Liaoning Haichuan Construction Co., Ltd., the third person in the original trial, failed to appear in court after being summoned by our court according to law. The case has now been closed.
The plaintiff, Shenyang Pengyuntong Material Distribution Department, claimed in the first instance that in June 12, the plaintiff signed a sales contract with Yu You, a third person designated by Liaoning Haichuan Construction Co., Ltd., and the plaintiff provided 704 ultrasonic heat meters to Tieling Nanguang Real Estate Development Co., Ltd., with a contract price of 684,970 yuan. After the heat meter was installed and passed the test, the defendant paid the payment of 3 13988. Request the court to order the defendant Tieling Nanguang Real Estate Development Co., Ltd., the third party Liaoning Haichuan Construction Co., Ltd. and Yu You * * * to pay the payment, expenses and interest of 384,239 yuan, and bear the acceptance fee of this case.
Defendant Nanguang Real Estate Co., Ltd. argued that there was no buying and selling relationship between the original and the defendant, and the contract agreement signed by the company and the third party Liaoning Haichuan Construction Co., Ltd. stipulated that the contract price of the project would be guaranteed once and the whole project would not be settled, and requested to dismiss the plaintiff's lawsuit.
The third party, Haichuan Company, claimed that it did not sign a sales contract with the plaintiff, nor did it entrust others to sign a contract, and there was no sales relationship with the plaintiff's Peng Yun distribution office.
The third person, Yu Youshu, called himself the representative of the construction party. The defendant Nanguang Real Estate Company proposed that the water meter, electric meter and heat meter should be controlled at 2 million yuan. When the contract is executed, the money will be remitted to the supplier's account respectively. After signing the contract with the plaintiff's distribution office in Peng Yun, we paid the advance payment and payment of RMB 3 13988, with the balance of RMB 370,982 unpaid.
The first trial found that on March 25th, 20 1 1, the third party Haichuan Company (formerly Tieling Economic Development Zone No.2 Construction Engineering Co., Ltd.) and the defendant Nanguang Real Estate Company signed the Contract Agreement for Shi Sheng Taoyuan Community Phase I Project, stipulating that Haichuan Company would undertake the first phase project of Shi Sheng Taoyuan Construction Project developed by the defendant Nanguang Real Estate Company, and agreed on the scope of the contract. On June 4th, 20 12, the plaintiff's Peng Yun distribution department signed a product purchase and sale contract with Shi Sheng Taoyuan Project Department, a subsidiary of Haichuan Company, stipulating that the plaintiff would provide 704 ultrasonic heat meters, with a contract price of 684,970 yuan, 40% advance payment and 60% balance to be settled in one lump sum after installation. On June 9, the same year, the legal representative and relevant personnel of the defendant Nanguang Real Estate Company signed the contract price and payment on the Application Form for Project Payment, and agreed to implement and pay according to the contract, and paid the plaintiff an advance payment of 273,988 yuan on June 2, Kloc-0. After that, the defendant Nanguang Real Estate Company paid the plaintiff 40,000 yuan in cash, with the balance of 370,982 yuan unpaid. The plaintiff installed the ultrasonic heat meter in the Third Haichuan Company, which undertook the Shi Sheng Taoyuan construction project developed by the defendant Nanguang Real Estate Company, and the plaintiff's installation cost was 6,543,800 yuan+0.7 million yuan. In addition, it is found that the interest rate of similar loans for one to three years (including three years) issued by the People's Bank of China in July 2065438+2002 is 6. 15%.
The court of first instance held: 1. On the subject of creditor's rights and debts. The legal representative of the defendant Nanguang Real Estate Co., Ltd. signed and approved the contents of the product sales contract signed by the "Shi Sheng Taoyuan" project department and the plaintiff Peng Yun Distribution Department on June 25th, 20 12, and sent the heat meter involved for inspection on June 25th of the same year. On June 2 1 of the same year, the defendant Nanguang Real Estate Company directly paid all the advance payment to the plaintiff's Peng Yun distribution office according to the contract, and then directly paid the plaintiff 40,000 yuan for the goods. The installation of the heat meter was not included in the first phase project contract of Shi Sheng Taoyuan Community. Accordingly, the product sales contract signed by "Shi Sheng Taoyuan" project department and plaintiff Peng Yun's distribution office should be regarded as the behavior of defendant Nanguang Real Estate Company, which conforms to the constitutive requirements of China's contract law. Therefore, defendant Nanguang Real Estate Company and plaintiff Peng Yun's distribution office established the legal relationship of civil creditor's rights and debts of the sales contract according to law. Accordingly, the plaintiff Peng Yun claims that the distribution department requires the defendant Nanguang Real Estate Company to pay the payment of 370,982 yuan and the installation fee of 1.7 million yuan, which has factual and legal basis and should be supported. However, the claim about freight and storage fees and the claim of asking a third party to pay for the goods are not supported because it fails to provide sufficient and reliable evidence to prove the facts of its claim. Second, on the issue of overdue interest claimed by the plaintiff. Article 24 of the Supreme People's Court's Interpretation on Applicable Legal Issues in the Trial of Disputes over Sales Contracts stipulates that if the sales contract does not stipulate the liquidated damages for overdue payment or the calculation method of liquidated damages, and the seller requests compensation for the loss of overdue payment on the grounds of the buyer's breach of contract, the people's court may refer to the overdue penalty interest rate standard of the benchmark interest rate of similar RMB loans in the same period of the People's Bank of China for calculation. Article 3 of the Product Sales Contract stipulates that the installation and acceptance shall be completed within 20 working days from the date of arrival. On June 25th, 20 12, the defendant Nanguang Real Estate Company submitted 704 pieces of heat meters for inspection. The plaintiff failed to provide sufficient and reliable evidence to prove the time when the defendant received the heat meter. Accordingly, it should be presumed that the defendant Nanguang Real Estate Company received the heat meter from the plaintiff's Peng Yun distribution office on June 25th, 2065438. Article 6 of the Product Sales Contract stipulates that the remaining 60% of the money shall be settled in one lump sum after installation. The defendant Nanguang Real Estate Company failed to provide sufficient and reliable evidence to prove the installation completion time. Accordingly, it should be presumed that the installation acceptance was completed on July, 2065438 16. The defendant Nanguang Real Estate Company failed to pay the remaining price of RMB 370,982 to the plaintiff's Peng Yun distribution office within the time stipulated in the contract, which is a breach of contract, and the defendant Nanguang Real Estate Company shall bear the liability for breach of contract according to law. Accordingly, the plaintiff Peng Yun's claim for the defendant to pay interest loss has factual and legal basis and should be supported. However, since the product sales contract does not stipulate the penalty for overdue payment or the calculation method of penalty, it should be calculated with reference to the benchmark interest rate of similar loans of the People's Bank of China in the same period. Accordingly, according to the provisions of Articles 60, 107, 109, 159 and 161 of People's Republic of China (PRC) Contract Law, Article 24 of the Supreme People's Court's Interpretation of Applicable Laws in the Trial of Disputes over Sales Contracts, Article 64, Paragraph 1, Article 253 of People's Republic of China (PRC) Civil Procedure Law and Article 2 of the Supreme People's Court's Provisions on Evidence in Civil Proceedings, Judgment: 1. Defendant Tieling Nanguang Real Estate Development Co., Ltd. paid the plaintiff Shenyang Pengyuntong Material Distribution Office RMB 370,982 and overdue interest (the interest from July 20, 2002 to the payment date was 6. 17 according to the loan interest rate announced by the People's Bank of China for the same period. 2. The defendant Tieling Nanguang Real Estate Development Co., Ltd. shall pay the installation fee of 17000 yuan to the plaintiff Shenyang Pengyuntong Material Distribution Office within 10 days from the date when this judgment becomes legally effective; Three. Reject other claims of plaintiff Shenyang Peng Yuntong Material Distribution Department. If the obligation to pay money is not fulfilled within the period specified in this judgment, the interest on the debt during the delayed performance shall be doubled in accordance with the provisions of Article 253 of the Civil Procedure Law of People's Republic of China (PRC). The case acceptance fee is 7,064 yuan, which shall be borne by the defendant Tieling Nanguang Real Estate Development Co., Ltd. ..
After the verdict was pronounced, the defendant Tieling Nanguang Real Estate Development Co., Ltd. refused to accept it, and filed an appeal on the grounds that Tieling Nanguang Real Estate Development Co., Ltd. was the buyer of the heat meter supplied by Shenyang Pengyuntong Material Distribution Department in the original trial and should bear the responsibility for payment. The plaintiff in the original trial, Shen Yangpeng Yuntong Material Distribution Office, pleaded and agreed to the original judgment. Yu You and Liaoning Haichuan Construction Co., Ltd., the third person in the original trial, did not reply.
It was found through trial that on March 25th, 20 1 1, the original third company (former Tieling Economic Development Zone No.2 Construction Engineering Co., Ltd.) and the appellant Nanguang Real Estate Co., Ltd. signed the Contract Agreement for the First Phase Project of Shi Sheng Taoyuan Community, stipulating that Haichuan Company would undertake the first phase project of Shi Sheng Taoyuan Construction Project developed by Nanguang Real Estate Company. Water, heat, electricity and telecommunications are stipulated in the contract. Article 7 stipulates that the configuration and installation of household-related water meters, electric meters and heating locking valves shall be carried out in accordance with the specific requirements of relevant departments of Tieling City. The brands of water meters, electric meters and heating lock valves shall be designated by Party A, and Party B shall be responsible for the procurement and construction. The manufacturer of the meter box shall be designated by Party A according to the market price, and Party B shall be responsible for the procurement and installation. On June 4th, 20 12, the appellee's Peng Yun distribution office signed a product purchase and sale contract with Shi Sheng Taoyuan Project Department, the third company in the original trial, and it was agreed that 704 ultrasonic heat meters would be provided by Peng Yun distribution office, with the contract price of 684,970 yuan, 40% of the advance payment, and the remaining 60% would be settled in one lump sum after installation. On June 19 of the same year, the legal representative and relevant personnel of Nanguang Real Estate Company signed the contract price and payment on the Application Form for Project Payment, and agreed to implement and pay according to the contract. On June 2 1 day, Peng paid an advance payment of 273,988 yuan to the transportation distribution department. After that, Nanguang Real Estate Company paid 40,000 yuan in cash to the distribution office in Peng Yun, with the balance of 370,982 yuan unpaid. Peng Yun Distribution Department installed an ultrasonic heat meter in the Taoyuan construction project in Shi Sheng developed by Nanguang Real Estate Company, which was undertaken by the third company. The installation cost of Peng Yun distribution department is 65438+700,000 yuan.
In our court's opinion, in June of 12, the appellee's distribution department in Peng Yun signed a product purchase and sale contract with the project department of Shi Sheng Taoyuan, the third company in the original trial, which was the true intention of both parties, in line with the legal provisions and was a valid contract. Peng Yun Distribution Department installed heat meters for Liaoning Haichuan Construction Co., Ltd. as agreed, and Liaoning Haichuan Construction Co., Ltd. paid the contract price as agreed in the contract. Liaoning Haichuan Construction Co., Ltd. failed to pay the remaining price of 370,982 yuan to the distribution department in Peng Yun according to the time agreed in the contract, which is a breach of contract, and Liaoning Haichuan Construction Co., Ltd. should bear the responsibility for payment. The original judgment did not place the responsibility for payment on Liaoning Haichuan Construction Co., Ltd., a party to the contract, which should be corrected. On whether the appellant Tieling Nanguang Real Estate Development Co., Ltd. should also bear the contract price. Tieling Nanguang Real Estate Development Co., Ltd. and Liaoning Haichuan Construction Co., Ltd. signed the Contract Agreement for Shi Sheng Taoyuan Community Phase I Project, and made an agreement on water heating, electricity and telecommunications: the configuration and installation of water meters, electricity meters and heating locking valves related to household entry shall be implemented according to the specific requirements of relevant departments in Tieling, and the brands of water meters, electricity meters and heating locking valves shall be designated by Party A, and Party B shall be responsible for procurement and construction. The manufacturer of the meter box shall be designated by Party A according to the market price, and Party B shall be responsible for the procurement and installation. Although the heat meter in dispute in this case is not the heating lock valve agreed in this clause, the purchase and installation of the heat meter are in accordance with the requirements of the competent heating department of Tieling City and the designation of Tieling Nanguang Real Estate Development Co., Ltd., and the product purchase and sale contract is signed by Liaoning Haichuan Construction Co., Ltd. and Shenyang Pengyuntong Material Distribution Department. During the execution of the contract, Tieling Nanguang Real Estate Development Co., Ltd. replaced Liaoning Haichuan Construction Co., Ltd. and directly paid all the advance payment to Xiang Peng Transportation and Marketing Office according to the contract, and then directly paid 40,000 yuan to Xiang Peng Transportation and Marketing Office. Accordingly, when Liaoning Haichuan Construction Co., Ltd. purchases the heat meter of Shenyang Pengyuntong Material Distribution Department, it will be regarded as the materials controlled by Party A Tieling Nanguang Real Estate Development Co., Ltd., and Party A will pay the purchase fee. Tieling Nanguang Real Estate Development Co., Ltd., which is jointly and severally liable for Liaoning Haichuan Construction Co., Ltd., appealed that it has settled the project payment with Liaoning Haichuan Construction Co., Ltd., and Liaoning Haichuan Construction Co., Ltd. has admitted that Tieling Nanguang Real Estate Development Co., Ltd. does not owe it the project payment, so it should not bear the payment. Although Tieling Nanguang Real Estate Development Co., Ltd. provided the Description and Payment Voucher, which proved that Nanguang Company had paid the project payment to Haichuan Company, the Opening Description was not the final account document of the project, and Nanguang Company alone could not prove that it did not owe Haichuan Company the project payment. Therefore, Nanguang Company shall be jointly and severally liable within the scope of unpaid project funds. To sum up, according to Article 170, Paragraph 1 (3) of the Civil Procedure Law of People's Republic of China (PRC), the judgment is as follows:
1. Revoke the civil judgment No.00 106 of Yinzhou District People's Court of Tieling City (20 14);
2. Liaoning Haichuan Construction Co., Ltd., the third party in the original trial, paid RMB 370,982 and overdue interest to the appellee Shenyang Pengyuntong Material Distribution Office within 10 days from the effective date of this judgment (the interest is calculated according to the loan interest rate of 6. 15% announced by the People's Bank of China for the same period from July 20 12 to the date of payment);
3. Liaoning Haichuan Construction Co., Ltd., the third person in the original trial, paid the installation fee 17000 yuan to the appellee Shenyang Pengyuntong Material Distribution Department within ten days from the date when this judgment came into legal effect;
4. The appellant Tieling Nanguang Real Estate Development Co., Ltd. shall be jointly and severally liable for the second and third items of this judgment within the scope of unpaid project funds;
Verb (abbreviation of verb) rejects other claims of the appellee, Shenyang Pengyun Express Materials Distribution Department.
If the obligation to pay money is not fulfilled within the period specified in this judgment, the interest on the debt during the delayed performance shall be doubled in accordance with the provisions of Article 253 of the Civil Procedure Law of People's Republic of China (PRC).
The acceptance fee for the first and second trial cases is 7064 yuan each, which shall be borne by Liaoning Haichuan Construction Co., Ltd., the third person in the original trial.
This is the final judgment.
Presiding Judge Sun Wei
Acting Judge Pei Haosheng
Acting Judge Jia Chunhong
201June 5 17
Clerk Li.