In 2004, a construction company in Zhejiang learned through Wang that a large real estate project in Beijing was about to be developed, but the construction unit had not yet been determined and was preparing for bidding. At the same time, Wang promised to help the construction company obtain the construction right of the project, but it must pay accordingly, so the construction company issued a written commitment to give Wang a consulting fee of 3% of the total project cost after winning the bid. At the beginning of 2005, the construction company got the bid-winning notice. At the beginning of 2006, after repeatedly demanding consulting fees from the construction company, Wang sued the local Intermediate People's Court and demanded to pay 3.3 million yuan for consulting fees. In the trial of this case, the court of first instance found that the Letter of Confirmation was the true intention of both parties and had civil legal effect, and ordered the defendant to pay 3.3 million yuan in full as agreed in the Letter of Confirmation. Although the court of second instance also thought that Wang had provided certain services to the construction company and should be compensated to a certain extent, it thought that the amount was too high and adjusted the compensation amount to 800,000 yuan.
analyse
In my opinion, in order to recognize the legitimacy of the "project introduction fee" in the bidding of construction projects, we must admit the following questions: First, is the behavior of introducing projects an intermediary behavior? Second, if it is an intermediary contract, can it be deemed invalid because the introduction of project fees violates departmental regulations? Third, how much is the room rate? Below, we will analyze this in detail in combination with relevant laws and regulations.
Analysis 1: Individuals or units introduce the behavior nature of the project to the construction enterprise.
Intermediary contract refers to a contract in which both parties agree that one party accepts the entrustment of the other party, reports the opportunity to conclude a contract for the other party or provides media services for the contract according to the instructions of the other party, and the principal pays the remuneration. In real life, if an individual or unit accepts the entrustment of a construction enterprise, provides it with engineering information, or provides media services for it to sign a contract with the project owner, as long as both parties express their opinions on the basis of equality and voluntariness and do not violate the mandatory provisions of the law, it should be considered as a legal intermediary behavior. The reason is that the purpose of providing information is to facilitate the construction enterprise (client) to conclude a contract with the construction party (third party), which is the same as the intermediary contract; The information introducer also conforms to the behavioral characteristics that the intermediary does not directly participate in the formulation of the construction contract, but only plays an intermediary role and implements intermediary services according to the contract; The behavior of introducing projects also conforms to the characteristics of commitment, dual-service and informality of intermediary contracts. In the process of introducing the project, as long as the introducer (individual or unit) and the introduced person (construction enterprise) have the same meaning, the contract will be established, which is in line with the characteristics of unsuccessful. At the same time, both parties have to bear certain obligations, which reflects the duality of the intermediary contract. Third, the parties' agreement on the imported project can be oral or written, and there is no need to adopt a specific form, which fully conforms to the informal characteristics of the intermediary contract.
Analysis 2: According to the relevant laws and regulations of the project introduction fee, can the contract be deemed invalid if it violates the departmental rules?
The People's Court's Reply on How to Deal with the Information Fee of Introducing Projects to Contractors (1990119 (1990) Min He Zi No.31) points out: "... contracting projects must strictly abide by national policies and regulations. No unit or individual is allowed to introduce the project without permission and charge the project' introduction fee'. On this basis, some people think that any individual or unit charging fees in the name of imported projects should be deemed invalid, because it violates the provisions of Article 5 of People's Republic of China (PRC) Contract Law. However, it cannot be ignored that Article 3 of the Management Regulations stipulates that "all units and individuals engaged in the above contracting activities must abide by these Regulations", thus limiting the scope of application of the Regulations to only "units and individuals engaged in contracting activities", not all units or individuals.
To say the least, even if this clause applies to anyone, we can't invalidate the contract just because we violate the departmental rules. The Contract Law stipulates that the invalidation of a contract shall be based on the mandatory provisions of laws and administrative regulations, and shall not be based on local regulations and administrative rules. However, administrative regulations are departmental regulations in terms of effectiveness, not laws or administrative regulations.
Therefore, the agreement involved in this article belongs to the category of party autonomy and does not violate the provisions of relevant laws and administrative regulations. The agreed accommodation fees and consulting fees shall not be deemed invalid because they violate the mandatory provisions of departmental rules.
Analysis 3: How is the intermediary fee reasonable and appropriate? What is the calculation basis?
The Contract Law stipulates that if the broker facilitates the establishment of the contract, the client shall pay the remuneration as agreed. If the broker fails to facilitate the conclusion of the contract, he may not ask for remuneration, but may ask the client to pay the necessary expenses for engaging in the intermediary activities.
As for the standard of intermediary remuneration, there is no corresponding provision in our law. The author believes that the intermediary remuneration of intermediary institutions should be determined in accordance with the principle of fairness and reasonableness, and should not be too high. The amount of remuneration paid by the client to the intermediary shall, in principle, be agreed in the intermediary contract; If there is no agreement or unclear agreement in the intermediary contract, the principal and the intermediary may supplement it by agreement; If a supplementary agreement cannot be reached, it shall be determined in accordance with the relevant provisions of the contract or commercial trading habits; If it still can't be solved, it can be reasonably determined according to the intermediary's labor service. The details can be reasonably determined by considering the time, material resources, financial resources, manpower and the difficulty of intermediary affairs.
conclusion and suggestion
From the above discussion, it can be concluded that if a construction enterprise entrusts others to mediate in the bidding and contract signing activities of construction projects, if there is no evidence to the contrary to prove that the intermediary fees paid by the parties specifically violate the provisions of the Construction Law and the Bidding Law, and it cannot be proved that the intermediary fees paid by them are used for bribery and kickbacks, the effectiveness of the intermediary contract shall be confirmed according to law. Therefore, under the current legal system, it is still difficult for construction enterprises to stop paying project introduction fees under similar circumstances.
At the same time, the spirit of "Hospital 1990 Reply" is indeed inconsistent with the Contract Law, which is an important reason for the differences in trial practice in different places. In my opinion, in the case of different practices in practice, the most important thing for a construction enterprise, as a payer, is to grasp and highlight the illegality of the project introduction fee if it wants to apply the reply of the Institute 1990. As mentioned above, not all engineering intermediary contracts are illegal, and the court should protect normal intermediary activities according to law; Only when there are illegal situations in the process of project intermediation, there is room and possibility to apply the reply of our hospital 1990. In practice, common illegal situations include bribery by intermediaries and violation of bidding procedures. Construction enterprises should be good at collecting favorable evidence in these aspects.
Another way is to exercise the right of cancellation in time. For example, the account book in this case requires the construction company to pay unconditionally, but there is no requirement for the obligations of the payee. The consulting fee is as high as 3% of the total project cost, even far exceeding the average profit rate of the construction industry. This can be cited in Article 54 of the Contract Law. If a contract is concluded in obviously unfair, one party has the right to request the people's court or an arbitration institution to change or cancel it. Of course, the right of cancellation must be exercised within one year from the date when he knows or should know the reason for cancellation.