Question:
1. Is the contract signed by Party B with Party C and Party D valid? Why?
2. Use the knowledge of Building Law to analyze how to solve the above disputes.
Answer:
1. If both Party D and Party C have corresponding qualifications, the contract signed by Party B and Party D is valid. Because when signing the contract with Party C, Party B obtained the consent of Party A, and the contract is valid. If Party C has no corresponding qualifications, the subject of the contract is inconsistent and the contract is invalid.
2. According to the principle of relativity of contract, Party A requires Party B to bear the responsibility, and Party B requires Party C to bear the responsibility. Because Party D has carried out the construction in strict accordance with the contract and Party C's drawings, Party D has no fault and does not assume responsibility (unless it is malicious).
This whole dispute belongs to the scope of contract law.
Second,
(a) the basic facts of the case
On June 10, 2005, a real estate development company in Shanghai (hereinafter referred to as "Company A") signed a construction contract with a construction engineering company in Zhejiang (hereinafter referred to as "Company B"), stipulating that Company B would be the general contractor to undertake a hotel project invested and developed by Company A, with the contract scope covering civil engineering, heating and 24 floors above ground. The professional project of glass curtain wall is directly contracted by Company A, and the construction period is from June 26th, 2005 to February 30th, 2006, and the project payment is paid according to the progress of the project. At the same time, it is agreed that Company B will fulfill its cooperation obligations in the construction of professional glass curtain wall project, and Company A will pay the general contracting management fee to Company B according to 3% of the settlement price for the completion of professional glass curtain wall project.
The glass curtain wall project was constructed by a professional glass curtain wall construction unit in Jiangsu (hereinafter referred to as "Company C"). In the process of construction, when the general contracting project has been completed, the glass curtain wall project is not only delayed, but also there are many quality problems in the completed project due to C company's own reasons.
Company A has repeatedly urged Company B to fulfill its general contracting management obligations, while Company C has failed to fulfill the requirements stipulated in the professional construction contract. Company B, as the first defendant, and Company C, as the second defendant, filed a lawsuit with the court, with three claims:
1) Request the first defendant and the second defendant to jointly bear the actual losses and expected profits caused to the plaintiff by the delay in the construction period;
2) Request the first defendant and the second defendant to jointly undertake the obligation of quality repair;
3) Request the two defendants to bear the legal fees and property preservation fees of this case.
(B) the focus of controversy
In this case, the employer charged the "general contracting management fee" from the general contractor Company B, but failed to perform the general contracting management duties, requiring it to bear joint and several liability with the glass curtain wall professional construction unit Company C, while the general contractor Company B refused to bear joint and several liability on the grounds that both parties to the glass curtain wall professional engineering contract did not sign a contract with Company C, which led to disputes.
The key to distinguish this dispute is to distinguish the similarities and differences between the general contractor cooperation fee and the general contractor management fee. The specific focus of the dispute is mainly as follows:
1) What is the essence of the "general contracting management fee" charged by Company B? What is the main difference between general contracting management fee and general contracting cooperation fee?
2) If Company B has defects in the process of fulfilling its cooperation obligations, should it bear joint and several liability or joint and several liability? And what are the main provisions of the law on joint liability and joint liability?
3) Is there any legal basis for Company A to require the defaulting party to bear the expected profit of the hotel's delayed opening?
(3) A brief comment
"General contracting management fee" is charged at 1. Company B is actually a "general contracting cooperation fee", which are different concepts.
As the general contractor, Company B is willing to accept the so-called "general contractor management fee" for two reasons. One is that it is "natural" for the general contractor to charge the general contracting management fee; Second, it is "why not" to collect part of the project price outside the scope of general contracting. However, it is this seemingly "you love me" agreement that "it never rains but it pours" because of its misnomer. Because the "general contracting management fee" charged by company B is actually a "general contracting cooperation fee" in name.
According to Article 29 of the Construction Law: "The general contractor of a construction project may contract out some contracted projects to subcontractors with corresponding qualifications; However, except for subcontracting agreed in the general contracting contract, it must be approved by the construction unit. " Therefore, when the general contractor asks the employer to agree to its subcontracting, the employer often asks the general contractor to agree to directly settle accounts with subcontractors, and agrees to pay the general contractor management fee according to a certain proportion of the subcontracted project price. At this time, the general contractor charges a veritable general contracting management fee.
According to Article 283 of the Contract Law, in addition to the legal obligation to pay the project price in full and on time, the employer shall also undertake the obligation to provide the contractor with construction conditions that meet the requirements. Therefore, when the owner adopts the mode of general contracting and parallel contracting, the construction conditions of professional engineering projects that are directly contracted often need the cooperation of the general contractor to meet. At this point, the employer will sign a contract with the general contractor to stipulate the rights and obligations of both parties for the cooperation work provided by the general contractor (such as scaffolding, vertical transportation, etc.). In this case, agreements between company B and company A often occur. Although it is agreed that the general contractor will collect the general contractor management fee, its essence is to collect the general contractor cooperation fee.
Although Company B charges "general contracting management fee", its essence is a kind of "general contracting cooperation fee". As the subject and charging form of the general contracting management fee and the general contracting cooperation fee are the same, and the charging ratio is similar, they are often easily confused in practical work, or even the opposite, so that when there are quality or time limit problems in professional projects that need cooperation, the employer often requires the general contractor who collects the "general contracting management fee" to bear joint and several liabilities. The main difference between the two is: whether the general contractor has the right to contract professional engineering projects, if so, it has the obligation to manage professional engineering projects, then the fee charged is the general contracting management fee anyway, if not, it has no obligation to manage professional engineering projects, and its nature is only the general contracting cooperation fee.
2. The general contracting management fee charged by Company B is actually the general contracting cooperation fee and should not be jointly and severally liable with Company C..
The glass curtain wall project does not belong to the general contracting scope of Company B, but is directly contracted by Company A to Company C, so from a legal point of view, Company B has no obligation to manage the glass curtain wall project. Although the fee charged by Company B to Company A is called "general contracting management fee", its essence is general contracting cooperation fee. Since it is the cooperation fee of the general contractor, Company B should only bear the corresponding legal responsibility for the cooperation obligation.
Paragraph 2 of Article 272 of the Contract Law stipulates: "The general contractor of the project or the contractor of survey, design and construction may entrust part of its contracted work to a third party with the consent of the employer. The third party shall be jointly and severally liable to the employer with the general contractor or the survey, design and construction contractor for the work results it has completed. " Article 27 of the Regulations on Quality Management of Construction Projects stipulates: "If the general contractor subcontracts the construction project to other units according to law, the subcontractors shall be responsible to the general contractor for the quality of the subcontracted project according to the stipulations of the subcontract, and the general contractor and subcontractors shall bear joint and several responsibilities for the quality of the subcontracted project." Therefore, if the nature of the fees charged belongs to the general contracting management fee, the general contractor and subcontractors shall be jointly and severally liable to the employer in case of quality problems in professional engineering projects. If the nature of the fee charged is the general contractor's cooperation fee, when there are quality problems in professional engineering projects, the general contractor is only responsible for the defects in fulfilling the cooperation obligations, and there is no joint liability with the professional engineering construction unit to the employer.
3. There is a legal basis for Company A to ask Company C to bear the expected profit of the delayed opening of the hotel.
Article 113 of the Contract Law stipulates: "If one party fails to perform its contractual obligations or abide by the contract, causing losses to the other party, the amount of damages shall be equivalent to the losses caused by the breach of contract, including the benefits that can be obtained after the performance of the contract, but shall not exceed the losses that the breaching party foresaw or should have foreseen when concluding the contract." Article 119 of the Contract Law stipulates: "After one party breaches the contract, the other party shall take appropriate measures to prevent the loss from expanding; If appropriate measures are not taken to expand the losses, no compensation shall be claimed for the expanded losses. The reasonable expenses incurred by the parties to prevent the loss from expanding shall be borne by the breaching party. "
Therefore, the observant party may require the defaulting party to compensate for both direct losses and available benefits, and may also require the defaulting party to bear the reasonable expenses incurred by the observant party to prevent the losses from expanding. However, the requirement of "available benefits" shall not exceed the losses suffered by the observant party due to breach of contract foreseen or should be foreseen by the breaching party. At the same time, the time node that requires this foresight or should be foreseen is at the time of signing the contract, not at other times. In addition, in order to prevent further losses caused by breach of contract, the observant party may require the defaulting party to bear the expenses arising from taking measures. For example, the expenses incurred in continuing to perform or changing the contract. Of course, the breaching party can also defend the non-breaching party's claim for excessive compensation on the grounds that the non-breaching party has not taken appropriate measures. From this point of view, there is a legal basis for company A to ask company C to bear the expected profit of the hotel's delayed opening.
Third, the case
Plaintiff: 8 1 household, Juyuan Residential Development Zone, Chengguan Town, neixiang county City, Henan Province.
Legal Representative: Li.
Legal Representative: Cui.
Legal Representative: Zhang.
Defendant: Nanyang Construction Company of Henan Province.
According to the original report, since1early July, 1996, the 204 construction team under the defendant Nanyang Construction Company has been building a 13-storey building for Neixiang Agricultural Bank in the plaintiff's community, and the construction has been going on around the clock. The noise generated by construction may have a tolerable impact on the surrounding residents during the day, but at night, the deafening noise generated by machinery seriously affects the normal life, rest and study of residents. The residents negotiated with the defendant many times, but it was not resolved. Therefore, 8 1 households in Juyuan Residential Development Zone, Chengguan Town, neixiang county jointly filed a lawsuit with the People's Court of neixiang county, requesting the People's Court to order the defendant to remove the obstruction and compensate for the losses.
The defendant argued that there could be no construction noise, and asked the residents to understand.
submit to trial
The People's Court of neixiang county, Henan Province found through trial that1at the end of June, 1996, neixiang county Bank built a large building on the west side of Juyuan Community in Chengguan Town, which was undertaken by the defendant Nanyang Construction Company. Since the construction, the strong noise generated by mixers, pile drivers and other equipment, especially at night, has made the nearby residents fidgety and seriously affected their normal life and rest, especially for the sick and the elderly. To this end, some residents went to the construction site to negotiate with the defendant, but there was no improvement. Therefore, the plaintiff filed a lawsuit in neixiang county People's Court on July 8th, 1996, and filed an application for prior execution, demanding that the defendant immediately stop the noise pollution and stop the construction from 9: 00 pm to 7: 00 am the next day.
The above facts are proved by the following evidence:
1. After on-site inspection, the defendant's construction noise pollution has reached 1 19 dB, which seriously exceeds the standard.
2. There are other documentary evidence and statements of both parties as evidence.
The neixiang county People's Court held that the noise pollution caused by the defendant's mechanical construction at night had seriously exceeded the standard of "the maximum noise should not exceed 90 decibels" stipulated in the Regulations on the Management of Noise Pollution in Residential Area Construction, which seriously hindered the normal work, study and life of neighboring residents, especially unfavorable to the physical and mental health of the elderly and patients. According to Article 124 of the General Principles of the Civil Law of People's Republic of China (PRC) and the Regulations on the Prevention and Control of Environmental Noise Pollution in People's Republic of China (PRC), the defendant shall take necessary noise reduction and sound insulation measures to remove obstacles and stop the infringement. The neixiang county People's Court held that the plaintiff's claim was true and reasonable. According to the provisions of Article 97 of the Civil Procedure Law of People's Republic of China (PRC), on July, 2007 1996+00, the defendant was issued with an advance execution ruling, which ruled that the defendant was not allowed to use mechanical construction that caused serious noise from 9: 00 pm every day to 7: 00 am the next day. The defendant thought that the ruling was difficult to be fully implemented and applied for reconsideration. The reason is: 1 Noise generated by mechanical construction is inevitable, and I hope that nearby residents will give support, cooperation and dedication. 2. If the concrete is not poured continuously, the quality of the frame structure will be difficult to guarantee. 3. Due to the tight construction period and heavy tasks, apply to the court to reach an understanding with nearby residents on the "construction schedule" so that the project can proceed smoothly; It is required to deal with the excesses of some residents. In addition, during the reconsideration, the defendant apologized to the plaintiff in writing through the neixiang county People's Court, and put forward three specific rectification measures, saying that noise pollution should be minimized and construction should be arranged scientifically, hoping to gain the understanding and support of residents. In this regard, the neixiang county People's Court, taking into account the practical difficulties encountered by the defendant in the construction and the plaintiff's class action, actively mediated the two parties, and strived to properly solve the problem as soon as possible on the premise of fairness, reasonableness, mutual understanding and mutual accommodation.
Based on the above facts, evidence and reasons, and in accordance with the provisions of Article 85 of the Civil Procedure Law of People's Republic of China (PRC), the People's Court of neixiang county, Henan Province held a court session for mediation on July 2006 1996, and both parties reached the following agreement:
1. During the construction period, the defendant's normal operation time is set at 7: 00 to 2 1 every morning, which can be extended by one hour under special circumstances; Night work shall be arranged on Fridays and Saturdays as far as possible, and it shall not exceed 16 nights before the main project is completed. If it is necessary to extend the time, the plaintiff must be informed in advance.
2. When using vibrators and mixers at night, the defendant should install sound insulation facilities and construct from east to west.
3. The legal costs of this case, 40 yuan, shall be borne by the defendant.
The above agreement is in compliance with relevant laws and regulations, and we confirm it.
To annotate ...
The focus of this case is how to correctly handle the noise generated in the construction and affect the normal life of residents. Although this problem is simple, in practice, due to the large number of people involved and the great influence, improper handling will lead to intensified contradictions.
With the deepening of China's reform and opening up and the rapid development of socialist construction, noise pollution has increasingly appeared in people's living environment and attracted people's attention. In today's world, developed countries have already listed noise as one of the three major public hazards and strictly controlled it.
Noise is harmful to human health. From the physical point of view, noise is an irregular and chaotic combination of sounds with different frequencies and different sound intensities. Such as the rumble of cars and the screams of machines, its waveform is an irregular and aperiodic curve. From a biological point of view, all sounds that are annoying, annoying, unnecessary or harmful to people are called noise. In this sense, even pleasant sounds can become annoying noises for people who are sleeping or thinking. The biggest feature of noise pollution is sensory pollution, which affects people's work, rest and sleep, and then harms human health. According to the research data,
45 decibels of noise will affect people's sleep; Suddenly 60 decibels of noise will wake up most people who sleep; 65 decibels have an impact on work and study; Noise above 80 decibels makes people feel annoyed, and it is not easy to concentrate, which affects work efficiency and hinders rest and sleep; Severe noise will cause a series of physiological and psychological reactions, leading to various diseases, and noise of 175 decibels will kill people. When Nanyang Construction Corporation, the defendant in this case, was carrying out large-scale building construction, the mechanical equipment was not equipped with muffler equipment, resulting in strong noise of 1 19 decibels, which directly hindered and infringed on the work, study, life and physical and mental health of nearby residents. After some residents failed to negotiate with the defendant many times, the residents were unbearable and even had conflicts and excessive behaviors. After accepting the case, the people's court shall, in order to prevent the intensification of contradictions, make a timely ruling to implement it first, stop the defendant's noise pollution infringement, and then make appropriate mediation according to the actual situation. When dealing with this case, we should first consider that the mechanical noise used by the defendant in the construction is too large to be eliminated and avoided, and also consider the practical difficulties of heavy construction period and unable to stop concrete pouring. Second, considering that the plaintiff is a class action lawsuit, it has a great influence. In the spirit of facilitating production and life, solidarity and mutual assistance, fairness and reasonableness, the court actively mediated the two sides. On the premise of mutual understanding and accommodation, after persuasion and patient consultation, the plaintiff voluntarily gave up his claim for compensation against the defendant, and the two sides reached an agreement and successfully resolved the dispute in this case.
legal ground
1 General Principles of People's Republic of China (PRC) Civil Law (1April 986 12)
Article 124 Whoever, in violation of State regulations on environmental protection and pollution prevention, pollutes the environment and causes damage to others shall bear civil liability according to law.
2. The trial basis of this case
Regulations on the Prevention and Control of Environmental Noise Pollution in People's Republic of China (PRC) (1September 26th, 989) (invalid)
Twenty-first construction units to discharge noise into the surrounding living environment, shall comply with the national standards for environmental noise emission at construction sites.
Article 24 It is forbidden to carry out construction operations that produce noise pollution and affect residents' rest in residential areas, cultural and educational areas and convalescent areas at night, except for emergency repair and emergency rescue operations. If continuous operation is necessary due to production technology or special needs, it must be approved by the environmental protection department of the people's government at or above the county level.
Current reference law
Law of People's Republic of China (PRC) on the Prevention and Control of Environmental Noise Pollution (199665438+1October 29th)
Twenty-eighth emissions of construction noise to the surrounding living environment in the urban area of this Municipality shall conform to the national environmental noise emission standards for construction sites.
Thirtieth in the urban noise sensitive buildings concentrated area, it is forbidden to carry out construction operations that produce environmental noise pollution at night, except for emergency repair, emergency rescue operations and continuous operations due to production process requirements or special needs.
If continuous operation is necessary due to special needs, there must be a certificate from the people's government at or above the county level or its relevant competent department.
Night operations as mentioned in the preceding paragraph must be announced to nearby residents.
Fourth, the case:
Plaintiff: (a) A construction engineering company.
Defendant: (b) an automobile overhaul factory.
In August, 2002, Party A and Party B brought a lawsuit to the court for the dispute over the construction contract.
Party A and Party B signed a construction contract agreement in May 2002. According to the contract, Party B will contract with Party A to build an industrial park located in XX District, XX City. The contract price is 654.38+650,000 yuan, and the contracting method is general contracting, with Party A contracting the work and materials, and Party B responsible for the water and electricity supply. The water and electricity costs are borne by Party A, and the project quality is excellent. The construction period is May 10 to September 10 in the same year. After the contract is signed, Party A will enter the site for construction. In the process of construction, because Party B found that Party A's construction period was delayed, the project stopped due to quality problems, and there was no qualification certificate for construction projects, a dispute occurred between the two parties. The supervision unit suggested that Party B terminate the contract with Party A on the grounds that Party A could not continue the construction. At the same time, Party B entrusts the Provincial Institute of Building Science to appraise the completed project. On July 6, 2002, the appraisal unit issued a technical report, which determined that the project was unqualified. Regarding the quality problem, attach the photos taken by Party B at the scene and the approval signature of Party A's competent technicians on the technical verification contact list.
In addition, the court also commissioned a quality appraisal. With regard to the completed project cost, the court entrusted the appraisal to confirm that the project cost was 144438+092+38 0 yuan. Both parties have no objection to the 60,000 yuan paid by Party B during the construction period. In addition, the court entrusted the engineering cost consulting firm Co., Ltd. to issue a project repair plan, and at the same time determined that the repair cost was 35,432 yuan. Regarding the water fee, both parties have no objection to the water fee owed by Party A to Party B in 500 yuan. On July 30, 2002, Party A used the planer and bender to offset the electricity bill of 202 1 yuan. In addition, due to Party A's failure to pay the electricity fee in full and on time, the Electric Power Bureau required Party B to pay the electricity fee on August 2, 20021,and imposed a fine of 989 1.50 yuan. In addition, due to engineering quality problems, disputes occurred between the two sides, resulting in overdue construction period. B rented a house and overpaid 12500 yuan. Check again, during the construction process, due to the shortage of manpower, Party A once hired employees in Party B, and paid 800 yuan in arrears. Both parties have no objection to the salary owed to 800 yuan. For the part of the equipment, materials and tools proposed by Party A that are still on site, Party B will not accept the evidence unilaterally presented by Party A and provide relevant certificates that Party A has taken the goods. As for the certification materials provided by Party B that Party A unconditionally withdrew from the construction site and did not have any economic requirements for Party B, it was identified that the certification materials were written by the same person, although they were not completed at one time. In addition, in March 2004, Party A provided the court with a certificate of the fees charged by the Electric Power Bureau and the materials inspection fees.
The court of first instance held that Party A signed a construction contract with Party B without obtaining qualification, and the contract was invalid because it lacked the legal elements of a valid contract. For the quality problems in Party A's construction process, it is impossible to complete the second appraisal. In order to avoid the expansion of losses, combined with other facts of this case, it should be determined that there are quality problems in Party A's construction, and the losses caused to Party B should be compensated. The fees payable shall be paid. It claims that Party B should compensate the remaining equipment and tools on site, which is not supported due to insufficient evidence. As for the electricity fee evidence and material inspection fee evidence provided by it in March 2004, it should bear the burden of proof because it was not provided within the statutory time limit. As for Party B's claim that Party A withdraws from the construction site unconditionally, there is no economic requirement for Party B, and this court will not accept it because the evidence is flawed and does not conform to the principle of fairness. Party B shall pay the project payment to Party A according to the assessed quantity. But we support B's reasonable demand for counterclaim.
The court of first instance ruled that:
(1) Terminate the performance of the construction project contract signed by both parties. ..
(2) Party B shall pay Party A 845438+09238+0 yuan project payment.
(3) Party A pays 35,432 yuan for the maintenance of Project B. ..
(4) Party A pays Party B the rent of 12500 yuan.
(5) Party A shall pay the water fee of 500 yuan, the electricity fee is 98,965,438 yuan, the fine is 0.50 yuan, and the salary is 800 yuan.
(6) The project quality appraisal fee 10000 yuan and the project repair appraisal fee 10000 yuan, totaling 20,000 yuan, shall be borne by Party A and paid to Party B. The handwriting appraisal fee 1000 yuan shall be borne by Party B and paid to Party A. The project cost appraisal fee is 3,600 yuan, and both parties shall bear/kloc. Both parties shall pay the above two to six items within ten days after this judgment comes into effect. After the verdict was pronounced, A refused to accept it and appealed.
The court found in the second instance that on May 6, 2002, Party A and Party B signed 1 construction contracts; According to the contract, Party B will contract out the factory building located in XX Industrial Park to Party A for construction. The content of the project is general construction contract, and the construction period is May 10 to September 10 in the same year. The quality grade is excellent and the contract price is 1.65 million yuan. Both parties also agreed in the Supplementary Notes to the Contract that Party A is responsible for the payment of materials, construction electricity, electricity resources, water, water resources and inspection fees. After the contract is signed, Party A will enter the site for construction. Party B has paid Party A 60,000 yuan for the project. On June 25, 2002, the supervision unit pointed out the problems existing in the construction of earthwork, retaining wall and ground beam of hole pile foundation, and suggested that it was appropriate for Party B to terminate the contract with Party A.. On July 16, 2002, the Provincial Academy of Construction Sciences issued a technical report on quality inspection of ground beam engineering.
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