According to a judgment published earlier by the China Judgment Documents Network, the second-instance judgment of the construction contract dispute between Dash Intelligence and Shenzhen Tianjian Lifa Intelligent Technology Co., Ltd. (hereinafter referred to as "Tianjian Lifa") was issued: the first-instance judgment was upheld and the appeal request of Dash Intelligent was rejected.
Participated in a dispute over the construction of landmark projects in Changsha
Time to go back to 2016, Changsha Yuhua District landmark project transported to the central square after the residential delivery into the sprint stage of commercial projects, including the St. Regis Hotel and W Hotel two ultra-luxury five-star hotels, as well as office buildings and shopping malls. On March 1, 2016, Dash Intelligent (Party A) and Tianjian Lifa (Party B) signed the "Contract for the Construction subcontract of the St. Regis Hotel, Office Building and Business District Weak Current Subcontracting Project (except W Hotel) for the Security and Information System Project of Yunda Central Plaza Commercial Complex" (Contract No. F-201512RA01/01, hereinafter referred to as the Subcontract), with a total subcontract price of RMB4.91 million, and 20% of the contract amount provided by Dash Intelligent to Tianjian Lifa is an advance payment for the project. A total of RMB982,000; Tianjian Lifa submitted the "Project Subcontracting Payment Application Form" (attached: "Project Subcontracting Equipment materials on-site Acceptance Form") to Dash Intelligent before the 15th of each month, which must include the value measurement and calculation process of the completed subcontracted project (including the change project); after receiving the progress payment application and invoice submitted by Tianjian Lifa, Dashi Intelligent verified the actual workload in the same month, and Dashi Intelligent paid the progress payment to Tianjian Lifa according to 60% of the actual progress of the project, up to 80% of the total contract amount. After the completion of the project is accepted and settled by the construction unit (owner), the settlement work of Tianjian Lifa is handled, and Dashi Intelligent receives the completion acceptance payment of the construction unit (owner) (the cumulative acceptance ratio reaches 95%), and deducts 5% of the contract amount as the maintenance deposit and after Tianjian Lifa issues all invoices, the remaining project payment is paid to Tianjian Lifa at one time. Huang Yong, as the project manager of Dash, reviewed and confirmed the actual project progress and payment application of Tianjian Lifa Company, and signed the "Payment Approval Form" of Dash as the department manager.
On October 27, 2016, Yunda Central Plaza began soft opening and officially opened on April 28, 2017. On March 25, 2017, Tianjian Lifa Company sent a letter to Dash Company, stating: The subcontracting project of Changsha Yunda Central Square Commercial Complex Security and Information Engineering subcontracted by Tianjian Lifa Company has been completed; the project has been opened, the quality is all qualified, and all the project materials are submitted; Tianjian Lifa Company is currently in financial difficulties, please organize the acceptance of changsha Yunda Central Square Commercial Complex Project Department of Dash Company as soon as possible, and can receive money after the project acceptance. Huang Yong signed the letter on March 27, 2017, stating "Received." And so on to the owner organization acceptance. On May 31, 2018, Dash Company and the owner Fang Yunda Company signed and sealed the "Project Acceptance Record Form" of the project involved in the case, confirming that the acceptance of the project involved in the case was qualified. On January 31, 2019, Dash returned a performance bond of 245,500 yuan to Tianjian Lifa Company. On December 31, 2019, Dash and Yunda completed the settlement and determined that the final project price of Dash was 10,318,394.6 yuan (excluding the W hotel part), including the visa bill amount of 242,166.45 yuan.
After the completion of the project, Dash Company and Tianjian Lifa Company have not handled the settlement, resulting in disputes between the two parties, so Dash Company sued the court of first instance to the People's Court of Ningxiang City, Hunan Province, on April 28, 2020.
The first instance judgment of Dash Intelligent to pay nearly 1.8 million yuan of project funds and interest Darshi Intelligent was not satisfied and appealed
After trial, the court of first instance ruled that Shenzhen Dashi Intelligent Co., Ltd. shall pay the remaining contract project amount of 1,558,044.6 yuan to Shenzhen Tianjian Lifa Intelligent Technology Co., Ltd. within 10 days from the effective date of the judgment; Shenzhen Dash Intelligent Co., Ltd. shall, within 10 days from the effective date of this judgment, pay interest on overdue payment to Shenzhen Tianjian Lifa Intelligent Technology Co., Ltd. (based on the total amount owed of 1,799,311.1 yuan, and paid from June 12, 2020 at the quoted loan market interest rate announced by the National Interbank Lending Center until the date of actual payment); 4. Reject the litigation claims of Shenzhen Dajian Lifa Intelligent Co., Ltd.; 5. Reject other counterclaims of Shenzhen Tianjian Lifa Intelligent Technology Co., Ltd.. If the obligation to pay money is not performed within the period specified in this judgment, the interest on the debt during the period of delayed performance shall be doubled in accordance with the provisions of Article 253 of the Civil Procedure Law of the People's Republic of China. In this case, the acceptance fee for this lawsuit was 8586 yuan and the preservation fee was 5000 yuan, a total of 13586 yuan, which was borne by Shenzhen Dashi Intelligent Co., Ltd. due to the application of the simplified procedure, and the counterclaim acceptance fee was 14620 yuan, which was borne by Shenzhen Dashi Intelligent Co., Ltd. of 9378 yuan, and Shenzhen Tianjian Lifa Intelligent Technology Co., Ltd. was responsible for 5242 yuan.
For the first-instance judgment, Dash Intelligent was not satisfied and appealed to the Changsha Intermediate People's Court.
The Changsha Intermediate People's Court pointed out that neither party submitted new evidence during the second-instance trial, and this court confirmed the facts of the case ascertained by the court of first instance.
Dash Intelligent Failed to Appeal The second instance upheld the original judgment
The Changsha Intermediate People's Court held that the focus of the dispute in this case was: 1. Whether the lawsuit should be suspended in this case; 2. Whether the visa of Huang Yong, the appellant's former staff member, could be used as evidence to determine the facts of the case; 3. whether Tianjian Lifa Company had completed all the project quantities, and whether the settlement between Dashi Company and Yunda Company could be used as the basis for Tianjian Lifa's actual completion of the project quantity.
Regarding the focus of the dispute 1: In the course of the second instance trial of this case, the appellant Dashi Intelligent proposed that Huang Yong, the leader of the project department involved in the management case at the time, had a visa for Tianjian Lifa Company in the name of "project manager", because Huang Yong was suspected of embezzling the appellant's funds, the evidence in this case was suspected of falsification and applied for the suspension of the trial of this case, and this court held that Huang Yong's suspected embezzlement of funds case had no connection with this case, so the appellant's application for the suspension of the trial of the case had no legal basis, and this court did not support it;
Regarding the focus of the dispute 2: After investigation, Huang Yong, as the project manager of Dash Intelligent, reviewed and confirmed the actual project progress and payment application of Tianjian Lifa, and signed the "Payment Approval Form" of Dash as the department manager. The signature part should be confirmed by the project department of Shenzhen Dash Company Yunda Central Plaza, the previous two parties' project progress payment was based on the amount reviewed in the payment application form of both parties, and now the appellant has not submitted evidence to prove that Huang Yong and the appellant have maliciously colluded to damage the interests of the appellant, so Dash Intelligent claims that Huang Yong's signature cannot be used as an appeal ground for determining the factual evidence of the case cannot be established, and this court does not support it.
Regarding the third focus of the dispute: According to the subcontract signed by the two parties, the contract price shall be in the form of a unit price contract and a fixed total price, and for the calculation of the project quantity, according to Article 16 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 Project Contracts, if the parties have agreed on the valuation standard or valuation method of the construction project, the project price shall be settled in accordance with the agreement. According to the above principles, as long as the parties agree to calculate the fixed price in the construction project contract, the project payment shall be calculated in accordance with the contract, except for the change in the amount of the project outside the scope of the risk specified in the contract or the change of the situation, the contract price cannot be adjusted in principle, and neither party can violate the contract to settle the project price in other ways. That is to say, if the parties agree that the project payment shall be fixed at a fixed price, and the actual amount of work is increased or decreased compared with the agreed scope of the project, the increase or decrease may be settled with reference to the contract on the basis of determining the fixed price, and then the total price shall be increased or decreased accordingly according to the settlement results, and the entire project cost shall not be re-settled by setting aside the contract agreement. Therefore, the appellant, Dashi Company, argued that Tianjian Lifa Company did not follow the construction content of the subcontract, and requested that the project payment of Tianjian Lifa Company be settled according to the amount of project settled between Dashi Company and Yunda Company, and this court did not support it. In addition, the project involved in this case has been nearly accepted and actually put into use, Moreover, the appellant has already paid a total of 3,106,455.4 yuan to the appellee through the review procedure, and now the appellant claims that the appellee only completed the corresponding project amount of only 1,759,461.43 yuan is obviously inconsistent with common sense, and the appellant has failed to provide corresponding evidence to prove that the project involved in the case has been completed and accepted and has been delivered for use, because the appellee has not completed the evidence that the appellant has entrusted a third party to complete part of the project quantity agreed in the contract, so this court does not support the appellant's appeal opinion.
In summary, the appeal request of Shenzhen Dashi Intelligent Co., Ltd. cannot be established and should be rejected; the first-instance judgment found that the facts were clear and the law was correct, and should be upheld. In accordance with the provisions of the first paragraph of article 169 and the first paragraph of article 170 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows: the appeal is rejected and the original judgment is upheld. The acceptance fee of the second-instance case is 46,412 yuan, which is borne by Shenzhen Dashi Intelligent Co., Ltd. This judgment is final.
(The picture in the text is from: China Judgment Documents Network)
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