【Court Summary】
Although the actual constructor is a natural person, the enterprise management fee and fee have nothing to do with the main qualification and qualification of the project construction, and if the actual constructor participates in the project organization and management during the construction of the project, and bears the corresponding project sewage discharge fee and workers' "five insurances and one housing fund" and other expenses, it has the right to claim the enterprise management fee and fee. At the same time, because the actual constructor organizes the construction process, its labor, materials, etc. have been materialized in the overall value of the construction project, and there is no quality problem in the project, it is also entitled to obtain the corresponding consideration (profit).
Supreme People's Court of the People's Republic of China
Civil Judgment
(2021) Supreme Law Min Zhong No. 412
Appellant (plaintiff in the original trial): Pan Chuanjin, male, born on November 23, 1965, Han nationality, living in Pingtan County, Fujian Province.
Entrusted litigation agent: Zhang Kejia, lawyer of Beijing Zhangkejia Law Firm.
Appellant (original trial defendant): China Railway 12th Bureau Group Second Engineering Co., Ltd., domiciled at No. 19, Renmin South Road, Xiaodian District, Taiyuan City, Shanxi Province.
Legal representative: Zhang Jun, chairman of the company.
Entrusted litigation agent: Zhao Xuefeng, male, employee of the company.
Entrusted litigation agent: Chen Weidao, lawyer of Yunnan Bingjian Law Firm.
Appellee (original trial defendant): China Railway 12th Bureau Group Co., Ltd., domiciled at No. 130, West Mine Street, Wanbailin District, Taiyuan City, Shanxi Province.
Legal representative: Li Tiansheng, chairman of the company.
Entrusted litigation agent: Chen Weidao, lawyer of Yunnan Bingjian Law Firm.
Appellee (original trial defendant): Chenggui Railway Co., Ltd., domiciled at No. 228, Fuqin West Road, Jinniu District, Chengdu, Sichuan Province.
Legal representative: Wang Song, general manager of the company.
Entrusted litigation agent: Chen Weidao, lawyer of Yunnan Bingjian Law Firm.
Appellee (original trial defendant): Wang Jinfeng, male, born on September 25, 1956, Han nationality, lives in Haidian District, Beijing.
Entrusted litigation agent: Jin Lingtao, lawyer of Liaoning Tailai Law Firm.
The third person in the original trial: Henan Zhongzhongtunnel Construction Labor Service Co., Ltd., whose residence is Wenzhou Commercial Street, north section of Huangchi Road, Fengqiu County, Henan Province.
Legal representative: Wu Jie, general manager of the company.
Appointed litigation agent: Deng Zhanglin, lawyer of Chongqing Kunde Law Firm.
Appellant Pan Chuanjin and China Railway 12th Bureau Group Second Engineering Co., Ltd. (hereinafter referred to as China Railway 12th Bureau No. 2 Company) were dissatisfied with the Yunnan Provincial Higher People's Court (2020) Yunminchu No. 8 Civil Judgment of the Yunnan Provincial Higher People's Court (2020) due to a dispute over a construction project construction contract with the appellee, China Railway 12th Bureau Group Co., Ltd. (hereinafter referred to as China Railway 12th Bureau), Chenggui Railway Co., Ltd. (hereinafter referred to as Chenggui Railway Company), Wang Jinfeng and the third party of the original trial, Henan Zhong Tunnel Construction Labor Service Co., Ltd. (hereinafter referred to as Henan Zhong Company), Appeal to this Court. After the case was filed on February 25, 2021, this court formed a collegial panel in accordance with the law and held a public hearing on March 19, 2021. Appellant Pan Chuanjin and his entrusted litigation agent Zhang Kejia, appellant China Railway 12th Bureau No. 2 Company's entrusted litigation agents Zhao Xuefeng and Chen Weidao, appellee China Railway 12th Bureau and Chenggui Railway Company entrusted litigation agent Chen Weidao, appellee Wang Jinfeng's entrusted litigation agent Jin Lingtao, and Henan Zhong Company's entrusted litigation agent Deng Zhanglin, the third person in the original trial, attended the court to participate in the lawsuit. The case has now been concluded.
Pan Chuanjin's appeal request: 1. revoke the first-instance judgment and revise the judgment to pay the project price (tentatively 30 million yuan) according to the results of the judicial appraisal; 2. request that the project involved in the case be subjected to judicial appraisal of the project cost, expected profit, nest labor cost and economic loss in accordance with the "Construction Total Price Contract"; 3. The judgment of China Railway 12th Bureau No. 2 Company shall pay it the price according to the results of the judicial appraisal (tentative amount of 30 million yuan), and pay interest calculated at the loan market quotation rate announced by the Interbank Lending Center from September 8, 2015 to the date of performance determined by the judgment; 4. Sentenced Wang Jinfeng to return 2 million yuan; 5. The first- and second-instance litigation fees and appraisal fees shall be borne by the appellee. Facts and Reasons: (1) The project involved in the case shall be valued according to the quantity calculation table stipulated in the Construction Total Price Contracting Contract. 1. Chenggui Railway Company and China Railway 12th Bureau are the beneficiaries of Pan Chuanjin's completion of the project labor results, and Pan Chuanjin's entire construction result has a direct causal relationship with Chenggui Railway Company and China Railway 12th Bureau; 2. Pan Chuanjin, as the actual constructor of the project involved in the case, performed part of the obligations of the "Construction Total Price Contracting Contract" on behalf of the construction unit China Railway 12th Bureau, and also clearly agreed with Wang Jinfeng to settle according to the "Construction Total Price Contracting Contract". (2) A judicial appraisal of the project cost, expected profit, nest labor cost, and economic loss of the project involved in the case shall be initiated in accordance with the "Construction Total Price Contract". Since the project price should be settled in accordance with the quantity calculation table stipulated in the Construction Total Price Contracting Contract, the project cost appraisal should be initiated in accordance with the Construction Total Price Contracting Contract. At the same time, since the unilateral termination of the contract by the construction unit constitutes a breach of contract, Pan Chuanjin should be compensated for the expected profits, so the expected profits, labor costs, and economic losses should be appraised. (3) Regardless of whether Wang Jinfeng approves the project performance bond or the so-called project introduction fee or the loan in the name of the project, it constitutes unjust enrichment, and the 2 million yuan collected by him shall be returned. (4) The litigation fees and appraisal fees in this case shall be borne in full by the losing party.
China Railway 12th Bureau No. 2 Company argued that 1. Pan Chuanjin's appeal request had no factual and legal basis, and the project price should be calculated according to the labor operation contract between the two parties; 2. Pan Chuanjin's application for appraisal has no factual and legal basis and should not be allowed.
China Railway 12th Bureau argued that it was consistent with the defense of China Railway 12th Bureau 2.
Chenggui Railway Company argued that it was consistent with the defense of China Railway 12th Bureau 2 Company.
Wang Jinfeng argued that Pan's appeal and grounds were untenable.
Henan Zhong Company stated that it requested the court to make a judgment according to law.
The appeal request of the second company of China Railway 12th Bureau is: 1. revoke the first-instance judgment, remand for retrial or revise the judgment according to law; 2. The litigation fees and appraisal fees of the first and second instance shall be borne by Pan Chuanjin. Facts and Reasons: (1) The first-instance judgment of China Railway 12th Bureau No. 2 Company lacked factual and legal basis for paying the project fee and interest. Indirect costs such as management fees, fees and profits of $868,820 and business tax of $218,898 should be deducted from the construction price. (2) The first-instance judgment ruled that China Railway 12th Bureau No. 2 Company paid the mechanical equipment repurchase fee and the loss of mechanical equipment stoppage had no factual and legal basis. 1. Pan Chuanjin did not deliver the corresponding mechanical equipment in accordance with the "Minutes on the Handling of Machinery and Equipment for XXXX Exit Negotiations", so China Railway 12th Bureau No. 2 Company should not pay the mechanical equipment repurchase fee; 2. The nature and attributes of the lost work fee of labor personnel and the loss of machinery and equipment downtime are different, and the occurrence of labor personnel loss does not necessarily cause loss of machinery and equipment downtime, and the two parties have not confirmed the loss of mechanical equipment downtime, so it should be regarded as non-existent. (3) The first-instance judgment of China Railway 12th Bureau No. 2 Company was unfair to bear 50% of the appraisal fee and should be corrected.
Pan Chuanjin argued that the project price should be calculated in accordance with the "Construction Total Price Contract", the machinery and equipment were already in the possession of China Railway 12th Bureau No. 2 Company, the first-instance litigation fee was miscalculated, and the litigation fee and appraisal fee in this case should be borne in full by the losing party.
China Railway 12th Bureau stated that it agreed to the appeal request and reasons of China Railway 12th Bureau 2 Company.
Chenggui Railway Company stated that it agreed to the appeal request and reasons of China Railway 12th Bureau 2.
Wang Jinfeng said he had no opinion.
Henan Loyalty Company stated that it agreed with Pan Chuanjin's reply.
Pan Chuanjin filed a lawsuit with the court of first instance and requested: 1. Initiate a judicial appraisal of the project cost, expected profit, nest labor cost and economic loss of the project involved in the case in accordance with the "Construction Total Price Contracting Contract" in accordance with the law; 2. Order Wang Jinfeng and China Railway 12th Bureau No. 2 Company to bear joint and several liability, jointly pay Pan Chuanjin the price according to the results of the judicial appraisal, tentatively 30 million yuan, and pay interest calculated at the loan market quotation rate announced by the National Interbank Lending Center from September 18, 2015 to the date of performance determined by the judgment; 3. Order Wang Jinfeng to return Pan Chuanjin's project performance bond of 2 million yuan; 4. Order Chenggui Railway Company to bear the responsibility for payment within the scope of the outstanding project payment; 5. The costs of litigation in this case shall be borne by the four defendants. During the trial, Pan Chuanjin changed his litigation claims to: 1. Initiate a judicial appraisal of the project cost, expected profit, nest labor cost and economic loss of the project involved in the case in accordance with the "Construction Total Price Contracting Contract" in accordance with the law; 2. Order China Railway 12th Bureau No. 2 Company to pay Pan Chuanjin the price according to the results of the judicial appraisal, tentatively 30 million yuan, and pay interest calculated at the loan market quotation rate announced by the National Interbank Lending Center from September 18, 2015 to the date of performance determined by the judgment; 3. Order Wang Jinfeng to return the project performance bond of 2 million yuan; 4. The costs of litigation in this case shall be borne by the four defendants.
The court of first instance found the facts: On December 11, 2013, Chenggui Railway Company (the contractor) and China Railway 12th Bureau (the contractor) signed the "Construction Total Price Contracting Contract", agreeing that China Railway 12th Bureau would contract the newly completed Metropolis to Guiyang Railway Leshan to Guiyang Project, the signed contract price was 2057371734 yuan, and the contract stipulated the start date, completion date, breach of contract liability, etc. On December 13, 2013, China Railway 12th Bureau and China Railway 12th Bureau 2 Company signed the "Labor Subcontract", agreeing that China Railway 12th Bureau 2 Company will build a new project from Guiyang Railway Leshan to Guiyang, and the total construction period of the project will start from December 13, 2013 to be completed on April 30, 2018, and the unit price of the contract and liability for breach of contract will be agreed.
On May 23, 2014, the project department of China Railway 12th Bureau No. 2 Company as Party A and Henan Zhong Company as Party B signed the "Labor Operation (Tunnel Engineering) Contracting Contract", the contract in addition to the seal of Henan Zhong Company and China Railway 12th Bureau No. 2 Company Project Department, Pan Chuanjin as the authorized agent of Henan Zhong Company signed the contract, the contract stipulates that Henan Zhong Company contracted 2444 meters of the main cave of the xxxx tunnel of Chenggui Railway, labor operation project and unit price, etc., the main materials of the project, The equipment is uniformly supplied by Party A. The unit price of the contract fully considers the change of labor price, and the unit price of the contract is implemented once without any adjustment, and the price without cost shall be subject to the price negotiated by both parties. The quantity of labor subcontracted shall be subject to the actual completed qualified quantity signed by Party A within the scope of the construction drawing design project. If the construction period is delayed or suspended due to force majeure (such as war, earthquake, flood, snow disaster, freezing rain, etc.), the contract construction period shall be extended accordingly, and the two parties shall not be liable for compensation to each other. After the contract was signed, Pan Chuanjin actually carried out the construction. On April 28, 2014, Wang Jinfeng as Party A and Pan Chuanjin as Party B signed the Construction Project Construction Agreement.
On August 17, 2015, the "Minutes on the Disposal of Machinery and Equipment for XXXX Exit Negotiations" stated, "Under the witness of the Zhenxiong County Railway Construction Office, the project department and the Pingshang Tunnel Team discussed the cancellation of the contract and the exit negotiation, and the focus of this negotiation was the handling of machinery and equipment... The project department agreed to purchase the machinery and equipment of the tunnel fleet at the following prices". The "List of Machinery and Equipment Details and Repurchase Prices" attached to the minutes stated that "excavators 488,000 yuan, loaders 400,000 yuan, ventilators 100,000 yuan, transfer pumps 280,000 yuan, screw air compressors 640,000 yuan, blowing machines 105,600 yuan, grouting machines 16,000 yuan, generator sets 350KW75,000 yuan, generator sets 50KW16,000 yuan, a total of 2,120,600 yuan." "The signatures of xxx, xx, xxx and others from the project department of the second company of the 12th Bureau of China Railway and Pan Chuanjin and others of the tunnel team, and the relevant personnel of the Zhenxiong County Railway Construction Office guarantee team signed the minutes as witnesses. The "Pingshang Tunnel Lost Work Statistics Table" shows that from May 2014 to May 10, 2015, due to other design plans, villagers' obstruction of work, quality inspection station inspection, unqualified sand and gravel materials, etc., the total number of lost labor days was 4512.5 working days, which was not counted after the flood. Project manager xxx, site manager xxx, xxx, construction team leader Pan Chuanjin signed the form. On December 14, 2015, Pan Chuanjin issued a "letter of commitment" to Wang Jinfeng, which read, "In the Pingshang Tunnel of Chenggui Railway, Pan Chuanjin and China Railway 12th Bureau have an economic dispute, and Pan Chuanjin signed an agreement under negotiation with Wang Jinfeng, and Pan Chuanjin shall be responsible for any economic losses and legal liabilities." On August 17, 2015, Pan Chuanjin exited, the project was not completed, not accepted, and the two sides did not settle.
From September 2, 2014 to May 20, 2015, China Railway 12th Bureau No. 2 Company paid Henan Zhong Company and the outsider Yingtan COSCO Construction Machinery and Equipment Leasing Co., Ltd. (hereinafter referred to as Yingtan COSCO Company) for the project payment of 4,942,960 yuan, and the actual payee was Pan Chuanjin.
On July 2, 2019, Yingtan COSCO Company issued a "Confirmation Letter", which reads, "Yingtan COSCO Company specially opened an account in Yudong Township Credit Union in Zhenxiong County for Pan Chuanjin to use the account, the account is actually occupied and used by Pan Chuanjin, all the project funds remitted to the account are owned by Pan Chuanjin, all the mechanical facilities of the Pingshang Tunnel Project are actually purchased and invested by Pan Chuanjin, and the creditors and debts arising from the Pingshan Tunnel Project are enjoyed and paid off by Pan Chuanjin".
(2018) During the trial of Yun Minchu Case No. 148, according to Pan Chuanjin's application, the court of first instance entrusted Huakuncheng Management Consulting Co., Ltd. to evaluate the cost of Pan Chuanjin's completed project and the loss of lost work of machinery and equipment and personnel. On May 30, 2019, the appraisal department issued the appraisal opinion of Huakun Consulting Price (2019) No. 2 to the court of first instance, and the appraisal results were: 1. According to the unit price agreed in the "Labor Operation (Tunnel Engineering) Contracting Contract", the project cost within the construction scope of Pan Chuanjin is 4. RMB302,375.37; 2. According to the railway quota and the relevant pricing documents for the same period of construction, the project cost within the scope of Panchuanjin is RMB6,315,376; 3. The loss fee for lost work of personnel is RMB214,528.76, the loss fee for the stoppage of machinery and equipment is RMB316,938.07, and the repurchase fee for machinery and equipment is RMB2,120,600.
(2019) During the trial of the Supreme People's Court Min Zhong No. 1838 case, the parties agreed that the focus of the dispute in this case was only whether the project involved in the case should be valued in accordance with the "Construction Total Price Contract". In addition to the above-mentioned issues, the parties do not object to the facts and applicable law determined by the (2018) Yunminchu No. 148 Judgment.
The court of first instance held that the focus of the dispute in this case was: 1. How to determine the total price of Pan Chuanjin's construction project, and whether the interest on the outstanding arrears claimed by Pan was established? 2. Should Wang Jinfeng return the performance bond of 2 million yuan to Pan Chuanjin?
As to how the total price of the construction project was determined by Pan Chuanjin, and whether the interest on the outstanding arrears claimed by Pan could be established. The court of first instance held that the Chengdu-Guizhou Railway Company (the contractor) signed the "Construction Total Price Contracting Contract" with the 12th Bureau of China Railway (the contractor), and the Chenggui Railway Company contracted the newly completed Metropolis-Guiyang Railway Leshan to Guiyang Project to the 12th Bureau of China Railway for construction. China Railway 12th Bureau entrusted the above-mentioned contracted project to China Railway 12th Bureau No. 2 Company for construction and signed the "Labor Subcontract" with China Railway 12th Bureau No. 2 Company. The contract is the true intention of the parties, does not violate the law, is legal and valid. After that, China Railway 12th Bureau No. 2 Company and Henan Zhong Company signed the "Labor Operation (Tunnel Engineering) Contracting Contract", China Railway 12th Bureau No. 2 Company subcontracted the xxxx tunnel of Chenggui Railway, of which the 2444-meter tender section of the main cave project was subcontracted to Henan Zhong Company for construction, but Henan Zhong Company did not organize the construction, and also said that it did not claim the project money, the project involved in the case was actually constructed by Pan Chuanjin, and Pan Chuanjin signed the contract by borrowing the qualifications of Henan Zhongjin Company, so the "Labor Operation (Tunnel Engineering) Contracting Contract" was invalid. Pan Chuanjin claimed the project payment to China Railway 12th Bureau 2 Company for the completed part, and China Railway 12th Bureau 2 Company said that if there was indeed a situation of arrears of project payment, it was willing to pay Pan Chuanjin, so the court supported Pan Chuanjin's claim that the main body responsible for the payment of the project payment was China Railway 12th Bureau 2 Company.
Regarding how to determine the construction payment for the completed project of Pan Chuanjin, the court of first instance held that the "Construction Total Price Contracting Contract" was signed between Chenggui Railway Company and China Railway 12th Bureau, and Henan Zhong Company and Pan Chuanjin were not the subject of the contract. The "Labor Operation (Tunnel Engineering) Contracting Contract" signed between China Railway 12th Bureau No. 2 Company and Henan Zhongjin clearly stipulates the valuation of the project payment, and the legal relationship between Chenggui Railway Company and China Railway 12th Bureau and China Railway 12th Bureau No. 2 Company and Henan Zhongjin Company and Pan Chuanjin is different, and Pan Chuanjin claims that the settlement of project costs with China Railway 12th Bureau No. 2 Company should refer to the "Construction Total Price Contracting Contract" without legal and contractual basis. Although the Construction Project Construction Agreement signed by Pan Chuanjin and Wang Jinfeng on April 28, 2014 stipulates that the project payment shall be settled according to the "Bill of Quantities Valuation Schedule" in the "Construction Total Price Contracting Contract", because Wang Jinfeng signed the agreement without the authorization of China Railway 12th Bureau 2 Company, and China Railway 12th Bureau 2 Company did not recognize it posthumously, the "Construction Project Construction Agreement" is not binding on China Railway 12th Bureau 2 Company. Therefore, Pan Chuanjin's application to initiate a judicial appraisal of the construction cost of the project involved in the case in accordance with the "Construction Total Price Contract" was not allowed by the court, and his claim that the project payment should be calculated with reference to the unit price stipulated in the "Construction Total Price Contracting Contract" could not be established, and the court did not support it. Pan Chuanjin, as the actual constructor of the project involved in the case, signed the "Labor Operation (Tunnel Engineering) Contracting Contract" with China Railway 12th Bureau No. 2 Company in the name of Henan Zhong Company, but the project was not completed and the two parties did not settle the matter. Article 2 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts stipulates that "if a construction project construction contract is invalid, but the construction project passes the completion inspection and acceptance, and the contractor's request to pay for the project with reference to the contract shall be supported." The first paragraph of Article 16 stipulates that "if the parties have agreed on the standard method of valuation of a construction project, the project price shall be settled in accordance with the agreement." According to the above provisions, China Railway 12th Bureau No. 2 Company did not raise a quality objection to the completed project of Pan Chuanjin, and Pan Chuanjin has the right to claim the project payment. As mentioned above, Pan Chuanjin's claim to settle the project payment by reference to the "Construction Total Price Contracting Contract" was not supported by the court. After the explanation of the court, Pan Chuanjin said that if he could not refer to the "Construction Total Price Contracting Contract", he should use the appraisal opinion of 6,315,376 yuan calculated according to the railway quota and the relevant pricing documents for the same period of construction. China Railway 12th Bureau No. 2 Company said that it should accept the appraisal opinion of 4,302,375.37 yuan of project cost calculated according to the unit price agreed in the "Labor Operation (Tunnel Engineering) Contracting Contract". The court held that although Pan Chuanjin signed the "Labor Operation (Tunnel Engineering) Contracting Contract" with China Railway 12th Bureau 2 Company in the name of Zhongzhong, in the actual performance of the contract, Pan Chuanjin purchased and leased machinery and equipment from outsiders for the project involved in the case, and it can be seen from the calculation table and valuation quantity table of manual work completed by Pan Chuanjin to China Railway 12th Bureau 2 Company every month that Pan Chuanjin provided not only labor services, but also comprehensive projects of construction project construction contracts. On August 17, 2015, Pan Chuanjin signed the "Meeting Minutes on the Handling of Machinery and Equipment for Exit Negotiations of the Pingshang Tunnel Team" signed with China Railway 12th Bureau 2 Company when he exited the site, which recorded that China Railway 12th Bureau 2 Company recognized Pan Chuanjin for providing mechanical equipment during the construction process and was willing to buy back at a discount to pay compensation to Pan Chuanjin. In summary, China Railway 12th Bureau No. 2 Company was aware of Pan Chuanjin's identity as the actual constructor, and the two parties did not perform the contract in accordance with the labor subcontract stipulated in the "Labor Operation (Tunnel Engineering) Contracting Contract", but formed a de facto construction project subcontract relationship. In the absence of settlement between the parties and the absence of a pricing agreement in the contract, the court accepted the appraisal opinion of RMB6,315,376 calculated by the Huakun Consulting Price Review (2019) No. 2 Appraisal Opinion based on the railway quota and the relevant pricing documents for the same period of construction, which was more in line with the objective reality of the case, and supported Pan Chuanjin's claim. After deducting the amount of RMB4,946,600 paid for the project that no party has objectioned to, China Railway 12th Bureau No. 2 still owes Pan Chuanjin RMB1,368,776 (RMB6,315,376-4,946,600). With regard to interest on construction costs, Article 18 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts stipulates that "interest shall be accrued from the date on which the project payment is due." If the parties have not agreed on the time of payment or the agreement is unclear, the following times shall be deemed to be the time of payment: (1) if the construction project has actually been delivered, the date of delivery; (2) If the construction project is not delivered, it shall be the date of submission of the completion settlement documents; (3) If the construction project is not delivered and the project price has not been settled, it shall be the date on which the parties sue the project. "According to the above provisions, Pan Chuanjin did not submit evidence to prove that the project involved in the case had been delivered or submitted the completion settlement documents, so the court determined that the interest on the project money was calculated from the date of the lawsuit, that is, August 14, 2018.
In addition, Pan Chuanjin's claim for the first project price covered losses, including the loss of personnel and machinery and equipment downtime identified in the appraisal opinion, equipment repurchase, loss of on-site machinery and equipment after being washed away by floods, nest labor costs, and expected profit loss. The court of first instance held that with regard to the loss of construction personnel and the stoppage of machinery and equipment, the "Statistical Table of Lost Work in Pingshang Tunnel" signed by Pan Chuanjin and China Railway 12th Bureau No. 2 Company stated that "from May 17, 2014 to May 10, 2015, due to other design plans, villagers' obstruction of work, inspection at quality inspection stations, unqualified sand and gravel materials, etc., a total of 4,512.5 working days were lost", that is, the construction personnel lost work and the machinery and equipment stopped work was an objective fact. The appraisal opinion issued by the appraisal agency of Huakun Consulting (2019) No. 2 determined that the loss of lost work of personnel was 214,528.76 yuan and the loss of mechanical equipment was 316,938.07 yuan, and the hospital accepted it. The court did not support Pan Chuanjin's claim that the interest on lost work losses and mechanical equipment stoppage losses had no contractual basis. Regarding the investment of machinery and equipment, on August 17, 2015, China Railway 12th Bureau No. 2 Company and Pan Chuanjin reached a "Minutes on the Handling of Machinery and Equipment for Exit Negotiations of the Pingshang Tunnel Team" in the form of meeting minutes, stating that China Railway 12th Bureau No. 2 Company paid Pan Chuanjin 2,120,600 yuan for the repurchase of machinery and equipment, which was confirmed by the court. The interest on the fee should be calculated from 18 August 2015, but since Pan Chuanjin claimed that interest was calculated from 18 September 2015, the court supported Pan's claim that the starting point for calculating interest on this amount should be calculated. As for Pan Chuanjin's claim of loss of machinery and equipment destroyed by the flood and the cost of nest work, because Pan Chuanjin did not submit evidence to prove this part of the loss, the court did not support it, and his application for appraisal was not granted. With regard to the loss of expected profits, the expected profit is the profit that can be realized and obtained after the performance of the contract, and it is a kind of profit that must be realized through the continued performance of the contract in the future. Therefore, Pan Chuanjin's claim of loss of lost work of RMB214,528.76, loss of downtime of machinery and equipment of RMB316,938.07, repurchase of machinery and equipment of RMB2,120,600, totalling RMB2,652,066.83, and interest of RMB2,120,600 for the repurchase of machinery and equipment, were supported by the court.
On the question of whether Wang Jinfeng should return the performance bond of 2 million yuan to Pan Chuanjin. The court of first instance held that Pan Chuanjin claimed that he paid a performance bond of 2 million yuan to Wang Jinfeng and submitted the "Letter of Agreement" signed with Wang Jinfeng on September 2, 2015, because the agreement was a copy, Wang Jinfeng did not recognize the authenticity, and the "Agreement" was not accepted by the court. At the same time, the "Receipt of Withdrawal Business of the Agricultural Bank of China" submitted by Pan Chuanjin stated that the outsider xxx sent 2 million yuan to Wang Jinfeng, and Wang Jinfeng recognized the receipt of the money, but believed that he borrowed money from xxx for the purchase of a house, because Pan Chuanjin could not submit the receipt or receipt issued by Wang Jinfeng after receiving the payment, and the business receipt could only prove the economic exchanges between the outsider xxx and Wang Jinfeng. In addition, Pan Chuanjin also submitted the "IOU" stating that "today I borrowed xxx 2 million yuan, this money is used for the performance bond of the tunnel project on the 12th Bureau of China Railway, which is remitted to Wang Jinfeng's account by xxx, and the borrower Pan Chuanjin", in the absence of evidence to prove that Pan Chuanjin has repaid the loan to xxx, the "IOU" was written and held by Pan Chuanjin himself, which is contrary to common sense. Therefore, Pan Chuanjin's claim that Wang Jinfeng returned the performance bond of 2 million yuan could not be established, and the court did not support it.
In summary, the court of first instance ruled that: 1. The defendant China Railway 12th Bureau Group Second Engineering Co., Ltd. shall pay the plaintiff Pan Chuanjin RMB1,368,776 and interest within 10 days of the effective date of this judgment (the interest shall be calculated according to the interest rate of similar loans in the same period of People's Bank of China from August 14, 2018 to August 19, 2019, and calculated according to the loan market quotation rate announced by the National Interbank Lending Center for the same period from August 20, 2019 to the date of actual settlement of the payment); 2. Within 10 days of the effective date of this judgment, the defendant China Railway 12th Bureau Group Second Engineering Co., Ltd. shall pay the plaintiff Pan Chuanjin RMB214,528.76 for lost work and RMB316,938.07 for the stoppage of machinery and equipment; 3. The defendant China Railway 12th Bureau Group Second Engineering Co., Ltd. shall pay the plaintiff Pan Chuanjin RMB2,120,600 and interest within 10 days from the effective date of this judgment for the repurchase of machinery and equipment (interest shall be calculated according to the interest rate of similar loans in the same period of People's Bank of China from September 18, 2015 to August 19, 2019, and calculated according to the loan market quotation rate announced by the National Interbank Lending Center for the same period from August 20, 2019 to the date of actual repayment); 4. Other claims of plaintiff Pan Chuanjin are dismissed. If the pecuniary obligation is not performed within the period specified in this judgment, the interest on the debt during the period of delay shall be doubled in accordance with Article 253 of the Civil Procedure Law of the People's Republic of China. The case acceptance fee was RMB379,341, of which RMB325,853.92 was borne by Pan Chuanjin and RMB53,487.08 was borne by China Railway 12th Bureau Group Second Engineering Co., Ltd. The appraisal fee is 210,000 yuan, which is borne by Pan Chuanjin 105,000 yuan and China Railway 12th Bureau Group Second Engineering Co., Ltd. 105,000 yuan.
In the second instance, China Railway 12th Bureau 2 Company, China Railway 12th Bureau, Chenggui Railway Company and Henan Zhong Company did not submit new evidence. Pan Chuanjin applied for xxx to testify in court, intending to prove that the nature of the 2 million yuan transferred by xxx to Wang Jinfeng was a performance bond. xxx mainly stated that he did not know Wang Jinfeng and had deposited 2 million yuan into Pan Chuanjin's designated account, which Pan Chuanjin had not repaid. The witness testimony of China Railway 12th Bureau 2 Company, China Railway 12th Bureau and Chenggui Railway Company that cross-examined xxx shall be determined by the court according to law; Wang Jinfeng cross-examined that xxx's witness testimony was inconsistent with the facts, that xxx had gone to the airport with her husband to pick up Wang Jinfeng, and that the aforementioned money was a loan from xxx's husband, and he wanted to repay xxx's husband, but he did not accept it; Henan Zhong Company cross-examined that it had no opinion.
Wang Jinfeng submitted to this court two recordings of his conversation with Pan Chuanjin on December 15, 2015, the main content of which was that in order to achieve the purpose of allowing Pan Chuanjin to calculate the project price by referring to the "Construction Total Price Contracting Contract" signed between Chenggui Railway Company and China Railway 12th Bureau, the two parties signed the Construction Engineering Construction Agreement, the actual signing time of the agreement was September 2, 2015, and the payment date was April 28, 2014. It is intended to prove that the signing of the Construction Agreement with Pan Chuanjin is to improve Pan Chuanjin's settlement standards, which is itself false. Regarding the recorded evidence, Pan Chuanjin first said that he could not hear it clearly, then said that it was not a complete recording, which could not achieve Wang Jinfeng's purpose of proof, and after the trial, he submitted a written cross-examination opinion saying that the evidence had been cut and spliced, and objected to the authenticity of the recording; China Railway 12th Bureau 2 Company, China Railway 12th Bureau and Chenggui Railway Company cross-examined and recognized the aforementioned evidence; Henan Zhong Company cross-examined that it had no opinion.
For xxx's witness testimony, this court analyzes whether Pan Chuanjin's purpose of proof can be achieved in combination with other evidence. For the two pieces of evidence submitted by Wang Jinfeng, because Pan Chuanjin did not deny the authenticity of the evidence in court, and the comprehensive analysis of other evidence can determine the authenticity of the content of the evidence, and the recording content also contains Pan Chuanjin's relevant statement that the Construction Agreement did not exist, the two pieces of evidence submitted by Wang Jinfeng were accepted.
The second review shows that on May 14, 2015, Zhenxiong News Network released the "5.10" flash flood mudslide disaster emergency press conference in Yudong Township" mainly stated that on May 10, 2015, Zhenxiong County, Zhaotong City, Yunnan Province experienced widespread heavy rain and local heavy rain weather, and suffered flash flood disasters.
The other facts ascertained by this court are consistent with those ascertained by the court of first instance.
The court held that the focus of the dispute in this case was: 1. whether the court of first instance was correct in determining whether Pan Chuanjin had completed the project price; 2. whether the court of first instance ruled that China Railway 12th Bureau No. 2 Company paid Pan Chuanjin the loss of machinery and equipment stoppage and the repurchase of machinery and equipment; 3. whether Wang Jinfeng should return 2 million yuan to Pan Chuanjin; 4. The court of first instance determines whether the proportion of appraisal fees and litigation fees is reasonable. In this regard, the comments are as follows:
(1) The court of first instance correctly determined whether Pan Chuanjin had correctly determined the price of the completed project
In this case, although Pan Chuanjin signed the "Labor Operation (Tunnel Engineering) Contracting Contract" with China Railway 12th Bureau 2 Company in the name of Henan Zhong Company, it can be concluded that China Railway 12th Bureau 2 Company recognized Pan Chuanjin for providing mechanical equipment during the construction process from the calculation table and valuation quantity table of manual work completed projects submitted by Pan Chuanjin to China Railway 12th Bureau 2 Company every month, as well as the fact that China Railway 12th Bureau 2 Company agreed to purchase Pan Chuanjin's machinery and equipment at a discount. It can be seen that the second company of China Railway 12th Bureau is handing over the 2444-meter tender section of the CGZQSG-11 Pingshang Tunnel of Chenggui Railway to Pan Chuanjin to undertake, not only the labor operation part of the aforementioned project to Pan Chuanjin to complete. In the process of negotiating with China Railway 12th Bureau 2 Company when Pan Chuanjin exited, Henan Zhong Company did not participate, but Pan Chuanjin and others directly signed the "Minutes on the Handling of Machinery and Equipment for Pingshang Tunnel Exit Negotiations" with China Railway 12th Bureau 2 Company in the name of the tunnel team, which shows that China Railway 12th Bureau 2 Company knew Pan Chuanjin's identity as the actual constructor. Therefore, in this case, Pan Chuanjin and China Railway 12th Bureau No. 2 Company formed a de facto construction project subcontract relationship. Because China Railway 12th Bureau No. 2 Company subcontracted the project to Pan Chuanjin, a natural person who did not have the legal qualifications to contract construction projects, which violated the mandatory provisions of the law and was an invalid de facto contract. According to the first paragraph of Article 11 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Construction Contract Dispute Cases (II), "several construction project contracts concluded by the parties for the same construction project are invalid, but the quality of the construction project is qualified." Where a party requests the settlement of the construction project price by reference to the contract actually performed, the people's court shall support it. "Pan Chuanjin, as the counterparty to the invalid contract, has the right to request China Railway 12th Bureau No. 2 Company to pay the project price in accordance with the provisions of the contract between the two parties.
In view of the fact that the construction project subcontract formed between Pan Chuanjin and China Railway 12th Bureau No. 2 Company was a de facto construction project, the basis for calculating the project price by reference to the agreement between the two parties did not exist, and the parties could not reach a supplementary agreement. According to Item 2 of Article 62 of the Contract Law of the People's Republic of China, "if the price or remuneration is not clear, it shall be performed at the market price of the place of performance at the time of conclusion of the contract; Where government pricing or government guidance prices shall be implemented in accordance with law, perform in accordance with provisions. "The court held that the budget quota issued by the railway department belongs to the government's guidance price, and the calculation of the project price of Pan Chuanjin's completed project with reference to the railway quota and the relevant pricing documents during the construction period is in line with the aforementioned provisions, and can also reflect Pan Chuanjin's actual investment in the project, which is relatively close to the price expected by both parties. Therefore, the court of first instance's acceptance of Huakun Consulting (2019) No. 2 Appraisal Opinion calculated the project price based on the railway quota and the relevant pricing documents for the same period of construction as not improper, and should be confirmed. Pan Chuanjin's claim that the construction price of the completed project should be settled in accordance with the "Bill of Quantities Valuation Schedule" attached to the "Construction Total Price Contracting Contract", which has no legal basis. As for the Construction Agreement signed between Pan Chuanjin and Wang Jinfeng, although it was agreed to settle with reference to the Bill of Quantities Valuation Table attached to the Construction Total Price Contracting Contract, Wang Jinfeng had submitted evidence to prove that the Construction Agreement was signed to increase Pan Chuanjin's settlement amount, so Pan Chuanjin could not make a contractual request to a third party outside the contract, China Railway 12th Bureau No. 2 Company, based on the false Construction Project Construction Agreement. In summary, Pan Chuanjin's grounds for appeal that the construction price of the completed works should be settled with reference to the Bill of Quantities Schedule attached to the Construction Total Price Contracting Contract cannot be established.
Regarding the construction price of Pan Chuanjin's completed project, China Railway 12th Bureau No. 2 Company appealed and claimed that the indirect costs of RMB868,820 and the business tax of RMB218,898 calculated at a tax rate of 3.35% should be deducted from the project price due to Pan Chuanjin. In this regard, the court held that Huakun Consulting Price Guide (2019) No. 2 Appraisal Opinion stated that the indirect fee of RMB868,820 included enterprise management fees, fees and profits. Since the enterprise management fee has nothing to do with the qualification of the actual constructor, and Pan Chuanjin has carried out specific project management during the construction process, the management fee should not be deducted from the project price due to Pan Chuanjin. As the fees stipulated by the government and relevant power departments must be paid, including the five insurances and one housing fund paid for the employees and the construction site engineering sewage discharge fees paid according to the regulations, because the construction of the project involved in the case was organized by Pan Chuanjin, the five insurances and one housing fund involved should be borne by Pan Chuanjin, so the fee should not be deducted from the project price due to Pan Chuanjin. As for profits, as the construction party of Pan Chuanjin, its labor, materials, etc. have been materialized in the overall value of the construction project, in the case that there is no quality problem in the project completed by Pan Chuanjin, the purpose of the contract of China Railway 12th Bureau 2 Company has been realized, and the profit is the corresponding consideration that Pan Chuanjin should get, if this part of the profit is left to China Railway 12th Bureau 2 Company, then based on the same invalid contract, China Railway 12th Bureau 2 Company will obtain more illegal benefits, which violates the basic principle of fair and reasonable contract. Therefore, profits should not be deducted from the project price due to Pan Chuanjin. In this case, business tax is a tax levied on the turnover obtained by the units and individuals providing taxable services, and China Railway 12th Bureau No. 2 Company is not a unit providing taxable services, and China Railway 12th Bureau No. 2 Company appealed to claim that it should be paid by the local tax bureau, but did not provide evidence to prove it. In summary, the grounds of appeal of China Railway 12th Bureau No. 2 Company that indirect costs and business tax should be deducted from the project price due from Pan Chuanjin cannot be established.
As mentioned above, because Pan Chuanjin's claim that the construction price of his completed works should be calculated in accordance with the provisions of the "Construction Total Price Contracting Contract" cannot be established, Pan Chuanjin's application for initiating a judicial appraisal of the construction cost and economic loss of the project involved in the case in accordance with the "List of Quantities Valuation Schedule" attached to the "Construction Total Price Contracting Contract" is not allowed. In addition, Pan Chuanjin also advocated that the expected profit loss that China Railway 12th Bureau No. 2 should compensate to it should be identified. Article 58 of the Contract Law of the People's Republic of China stipulates that "after a contract is invalid or revoked, the property acquired as a result of the contract shall be returned; Where it cannot be returned or is not necessary, compensation shall be made at a discount. The party at fault shall compensate the other party for the losses suffered as a result, and if both parties are at fault, they shall bear corresponding liabilities. The first paragraph of Article 113 stipulates that "if one of the parties fails to perform its contractual obligations or performs its contractual obligations inconsistently with the agreement, causing losses to the other party, the amount of damages shall be equivalent to the losses caused by the breach, 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 at the time of entering into the contract." "According to the above provisions, the loss of expected profits is a compensation that can be obtained under the validity of the contract, and Pan Chuanjin's application for appraisal of expected profits is not allowed when the de facto construction project subcontract formed between Pan Chuanjin and China Railway 12th Bureau No. 2 Company is invalid. In order to prove his claim, Pan Chuanjin submitted the "Pingshang Tunnel Flood Property Loss Statistics Table", "Pingshang Tunnel Personal Property Loss Statistics Table" and media reports on the economic losses caused by the flood in the first instance, but the "Pingshang Tunnel Flood Property Loss Statistics Table" and "Pingshang Tunnel Personal Property Loss Statistics Table" were unilaterally produced by him and were not confirmed by China Railway 12th Bureau No. 2 Company. Media reports on the economic losses caused by the floods cannot directly prove the losses suffered by Pan Chuanjin as a result of the floods, and the above evidence is insufficient to prove the losses in the absence of other evidence. Moreover, referring to Article 3-3 of the Labor Operation (Tunnel Engineering) Contracting Contract between the two parties, which stipulates that the two parties shall not be liable for compensation for the delay or suspension of construction due to force majeure such as floods, Pan Chuanjin's claim for compensation for property losses caused by floods lacks basis, and his corresponding appraisal application is not allowed.
(2) Whether the court of first instance ruled whether China Railway 12th Bureau No. 2 Company paid Pan Chuanjin the loss of machinery and equipment stoppage and the repurchase of machinery and equipment
Although the second company of China Railway 12th Bureau did not confirm the loss of mechanical equipment stoppage claimed by Pan Chuanjin, the "Minutes on the Disposal of Machinery and Equipment in the Exit Negotiations of the Pingshang Tunnel" recorded the number of mechanical equipment, and the "Pingshang Tunnel Lost Work Statistics Table" recorded the number of stoppage days, and the appraisal agency based on this appraisal of the stoppage loss of the machinery and equipment involved in the case and issued an appraisal opinion was more reasonable, and the court of first instance accepted the appraisal conclusion to make a correct determination of the stoppage loss of mechanical equipment The grounds of appeal of China Railway 12th Bureau No. 2 Company that Pan Chuanjin did not incur the loss of machinery and equipment stoppage cannot be established.
For the repurchase of machinery and equipment, the "Minutes on the Handling of Machinery and Equipment for Exit Negotiations of Pingshang Tunnel" clearly recorded that the project department of China Railway 12th Bureau No. 2 Company agreed to purchase the machinery and equipment involved in the case at the following price, totaling 2,120,600 yuan; For other small equipment, the project department counted and evaluated the price according to the facts. The above records show that China Railway 12th Bureau No. 2 Company has counted the machinery and equipment involved in the case within the range of 2,120,600 yuan. In addition, according to the statements of the parties at the opening of the second instance, the people's court took preservation measures against the machinery and equipment involved in the case at the construction site on the basis of the application of China Railway 12th Bureau No. 2 Company. Therefore, the machinery and equipment involved in the case were already under the actual control of China Railway 12th Bureau No. 2 Company, and China Railway 12th Bureau No. 2 Company's appeal ground that Pan Chuanjin did not deliver the machinery and equipment to him could not be established.
(3) Whether Wang Jinfeng should return 2 million yuan to Pan Chuanjin
Although xxx testified in court, he lent 2 million yuan to Pan Chuanjin and transferred it to Wang Jinfeng according to Pan Chuanjin's instructions. However, the transfer occurred before Pan Chuanjin and Wang Jinfeng signed the Construction Project Construction Agreement, and the agreement was signed to increase Pan Chuanjin's project settlement limit; In addition, after transferring a huge amount of money to Wang Jinfeng, who claimed to be unknown, xxx handed over the original IOU to Pan Chuanjin, which itself is not in line with common sense. Therefore, the evidence provided by Pan Chuanjin was insufficient to prove that the 2 million yuan was a project quality deposit paid by him to Wang Jinfeng or that Wang Jinfeng obtained unjust enrichment from Pan Chuanjin due to the project involved in the case, and Pan Chuanjin's appeal request for Wang Jinfeng to return 2 million yuan was not supported.
(4) The court of first instance determines whether the proportion of appraisal fees and litigation fees shared is reasonable
Regarding the appraisal fee, because Pan Chuanjin and China Railway 12th Bureau No. 2 Company did not agree on the project price and there was a dispute, resulting in the need to prove Pan Chuanjin's completed project price through appraisal, both parties are responsible for this, so the appraisal fee should be shared equally by both parties, and Pan Chuanjin and China Railway 12th Bureau No. 2 Company's appeal grounds for the unreasonable method of sharing appraisal fees in the first instance cannot be established. With regard to litigation fees, paragraph 2 of article 29 of the Measures for Payment of Litigation Fees stipulates that "if a lawsuit is partially won or partially lost, the people's court shall decide the amount of litigation costs borne by the parties according to the specific circumstances of the case". After examination, the court of first instance calculated and shared the litigation costs correctly, and Pan Chuanjin's reason that the litigation costs of the first instance should be borne by China Railway 12th Bureau No. 2 Company could not be established.
In summary, the appeals of Pan Chuanjin and China Railway 12th Bureau No. 2 Company cannot be established and should be rejected. The first-instance judgment found that the facts were clear and the law was correctly applied, and should be upheld. In accordance with Article 170, Paragraph 1, Item 1 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:
The appeal was dismissed and the judgment affirmed.
The second-instance case acceptance fee was RMB379,341, of which RMB325,853.92 was borne by Pan Chuanjin and RMB53,487.08 was borne by China Railway 12th Bureau Group Second Engineering Co., Ltd.
This judgment is final.
Judge Chief Lang Guimei
Judge Wang Chaohui
Judge Liu Lifang
May 11, 2021
Assistant to the judge: Liang Xin
Clerk Liu Hongyan
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