[Gist of the Adjudication].
1.The fact that Zhang Mouping actually paid 198716 yuan in social insurance premiums in the process of contracting the construction project involved in the construction case is highly probable, and this court affirms it. The actual fee paid by Zhang Mouping should be paid by Chenghu Company to Zhang Mouping as part of the project cost fee.
2.Zhang Mouyu actually participated in the operation and management of Chenghu Company, and his property was obviously mixed with that of Chenghu Company. The debts involved in the case are the joint debts of Luo Mouhu and Zhang Mouyu.
[Basic facts of the case].
Chenghu Company is a wholly owned limited liability company by natural persons, with real estate development and sales, construction engineering construction qualifications, the company's shareholders are Luo Mouhu, Zhang Mouyu is a supervisor. Arai Company is a limited liability company invested or controlled by natural persons, and has the qualifications of general contracting of construction engineering, professional contracting of building decoration and decoration engineering, and professional contracting of foundation engineering.
In February 2013, Chenghu Company signed a construction contract with Xinyu Company, stipulating that Xinyu Company would contract the construction of Anren County Building Project. Around October 2014, after the completion of the pile foundation project, Xinyu Company stopped work and evacuated the construction site, and the two parties terminated the construction contract.
On October 29, 2016, Chenghu Company (Party A) signed a construction contract with Zhang Mouping (Party B), stipulating: 1Anren County Building Project, according to the construction drawings provided by Party A and the Q&A minutes and the content determined in the change notice to organize the construction, about 40,000, contract work, package materials, package quality, package civilized construction, package safety. 2.The scope of the project is subject to the design blueprint of the project, including the foundation beam and cushion cap above the pile breaking head and pile, the commercial façade and the main structure above. 3.The commencement date is October 29, 2016 (subject to Party A's notice of commencement), and the completion date is one calendar day after the project has been completed and accepted, the internal information of the project is complete (except for Party A's information) and the receipt date issued by the archives, and the contract duration is one calendar day. 4.The quality requirements of the project shall meet the standards of the "Engineering Construction Quality Acceptance Specification" and above. 5.The contract price is about 55 million yuan, which is calculated at 1,400 yuan (including VAT). Party B shall bear all the water and electricity charges and material test fees used in the construction. This project is an advance project, when Party B advances funds to the project housing delivery, Party A shall pay Party B all the project money, if Party A owes Party B the project payment, Party A shall pay Party B the project arrears at the development cost price (except for the basement and the top floor). 3% of the total price is set aside as a house warranty, and 15%, and 1 after three years5%。During the construction period, both parties participate in the sale of the house, and the sales of the house should be strengthened, and if there is sales during the construction of Party B, 60% of the sales revenue shall be guaranteed to pay Party B. The increase or decrease of more than 10,000 yuan is subject to the 2014 quota, and the final accounts are based on the actual accounts.
After the contract was signed, on November 18, 2016, Zhang Mouping organized personnel and machinery and equipment to enter the site for construction. On November 30, 2016, Zhang Mouping (Party B) signed the "Internal Contracting Agreement" with Arai Company (Party A), stipulating: 1In view of the fact that Zhang Mouping and Chenghu Company (legal person Luo Mouhu) signed the "Hunan Provincial Construction Project Construction Contract" on October 29, 2016, Party A now agrees that Party B will undertake the construction of Anren XX Building Project in the form of internal contracting. 2.The total cost of the project is about 55 million yuan, and Party B is fully contracted, and all debts, civil liabilities, economic liabilities and other legal liabilities arising during the construction of the project shall be borne by itself. 3.Party B is 07% to pay the construction management fee to Party A;After the project money allocated by the construction unit reaches Party A's account, Party A will transfer the project money to Party B according to the progress of Party B's project after deducting the management fee and tax. 4.Party A is responsible for issuing the relevant documents, certificates and other relevant information required in the construction process and if Party B needs Party A to entrust the project management personnel to participate in the construction site management, the cost shall be borne by Party B. 5.Party B has autonomy in the construction management of the project, is responsible for the organization of construction and capital operation, abides by the law, and consciously obeys the management and supervision of the local government and relevant departments. 6.The seal of the project manager must be strictly managed, and it is strictly forbidden to use the seal to sign construction contracts, loans, guarantees, mortgages and other business activities. 7.The settlement and payment between the two parties and Chenghu Company shall be subject to the construction contract signed by Party B and Chenghu Company (legal person Luo Mouhu) on October 29, 2016, and other contracts are only used for filing and are not used for payment and settlement.
On the same day, Arai Company appointed Liu Fu as the person in charge of the project and Zhang Mouping as the project manager, responsible for the daily management of the project, business negotiation and contract signing.
During construction (before December 4, 2016), Zhang Mouping made and submitted the "Project Resumption Report" and other materials in the name of Arai CompanyFill in the "Construction Log", sign the "Construction Equipment Leasing Contract" and "Steel Worker Labor Contract", and pay for red bricks, steel bars and other projects.
On December 9, 2016, Zhang Mouping signed the "Engineering Construction Contract" with Anren Branch of Chenneng Company in the name of Chenghu Company, and the branch contracted the 13+14 to 13+18 pole line dismantling and installation project of Xinjin Line, and Zhang Mouping paid the contract fee of 10,000 yuan.
After that, Chenghu Company signed a construction contract with Arai Company, stipulating: 1Scope of contracting: Anren County Building A and B civil engineering general contracting (excluding pile foundation);2.According to the construction drawings provided by Party A, the Q&A minutes and the content determined in the change notice, the group project shall be attached to the "List of Projects Contracted by the Contractor";3.The total calendar days of the contract period are 540 days, the planned start is April 10, 2016, and the planned completion is October 10, 2017, the quality of the project meets the standards, and the contract price is 42.28 million yuan4.The employer undertakes to perform the project approval procedures in accordance with the law, raise funds for the construction of the project and pay the contract price in accordance with the time limit and manner agreed in the contract, and the contractor undertakes to organize and complete the construction of the project in accordance with the law and the contract, ensure the quality and safety of the project, refrain from subcontracting and illegal subcontracting, and bear the corresponding responsibility for project maintenance during the defect liability period and warranty period. Chenghu Company and Arai Company affixed their seals to the contract, and the contract was signed on March 18, 2016.
On February 24, 2017, the foundation project was accepted. On March 28, 2017, the Anren Housing and Urban-Rural Development Bureau approved and agreed to contract the project involved in the case to Arai Company. On April 1, 2017, Chenghu Company signed a construction contract with Arai Company, which was filed with the Anren County Housing and Urban-Rural Development Bureau, and the main content of the contract was basically the same as the main content of the construction contract on March 18, 2016. Both parties agreed that the contract was re-signed due to the change of the name of the industrial and commercial registration of Arai Company.
On June 5, 2017, the project obtained the construction project planning permit, construction land planning permit and construction permit. On August 31, 2017, the main project of the building was accepted.
From July 3, 2018 to September 4, 2018, Chenghu Company issued a "Work Contact Letter" to Arai Company five times, requesting it to resume construction and deliver the house on schedule. On August 15, 2018, Arai Company issued a "Work Contact Letter" to Chenghu Company and Chenzhou Engineering Supervision Company, stating that the project was forced to stop work because Chenghu Company was in arrears of the project price. Because some of the projects involved in the case have not been completed, and the acceptance has not been completed so far, the housing of the project has been sold, the shops have not been sold, and the income from the sale of houses is about 70 million yuan to 80 million yuan.
During the period from July 4, 2017 to June 19, 2018, Chenghu Company paid a total of 24600464 yuan for the project. Among them, 16 million yuan was paid to the account of Arai Company and 8.35 million yuan was paid to Luo Mouyu's bank account. After receiving the payment from Chenghu Company, Arai Company deducted the management fees and taxes payable by Zhang Mouping, and paid the remaining money to Luo Mouyu's personal account.
It was also ascertained that from 2017 to 2018, Chenghu Company transferred 7658888 yuan to Luo Mouhu's account through the Anren Branch of China Construction Bank, Rural Commercial Bank, and Agricultural Bank of China, and Luo Mouhu transferred 901442 yuan to Chenghu Company, and transferred 6757446 yuan to the difference. Chenghu Company transferred 7995017 yuan to Zhang Mouyu's personal account through the above-mentioned bank, and Zhang Mouyu transferred 4702240 yuan to Chenghu Company, and the difference between transfer and transfer out was 3292777 yuan.
In the lawsuit, entrusted in accordance with the law, Huaxin Cost Company issued a project cost appraisal opinion: 1The construction scope of Anren County XX Building A and B buildings agreed in the contract is 3812638 sq.m.;2.The total cost of the construction scope of the construction scope agreed in the contract of Building A and B of XX Building in Anren County is 53376932 yuan (38126.).38 square meters 1400 yuan square meters), the total cost of the completed project is 50879370 yuan (this appraisal according to the unified appraisal standard, the total cost of the construction scope of the XX building A and B buildings agreed in the contract is calculated according to the standard quota 5546626394 yuan, the total cost of the completed project is 5287093993 yuan, the conclusion of the completed project cost is calculated according to the proportion of the two).
Huaxin Cost Company replied to the questions consulted by the hospital: 1Such as 37863 recorded by the Anren County Real Estate Center95 square meters, the total price after the completion of all is 53009530 yuan, of which, when the project completed by Zhang Mouping does not include the disputed part of the project, the cost of the completed project is 4705483193 yuan;When the project completed by Zhang Mouping includes the disputed part of the project, the cost of the completed project is 50529159$12. 2.According to the contract signed between Chenghu Company and Arai Company on April 1, 2017, when the project completed by Zhang Mouping does not include the disputed part of the project, the cost of the completed project is 3753057788 yuan;When the project completed by Zhang Mouping includes the disputed part of the project, the cost of the completed project is 4030167435 yuan.
[Plaintiff's Claim].
Zhang Mouping's first-instance litigation request: 1Chenghu Company paid 26.5 million yuan for the completed project price and 3.6 million yuan for capital loss owed to Zhang Mouping, totaling 30.1 million yuan2.Luo Mouhu and Zhang Mouyu are jointly and severally liable for the project price and capital losses owed by Chenghu Company to Zhang Mouping;3.Zhang Mouping has the priority right to be compensated for the construction project price or auction money of Chenghu Company4.The litigation costs, property preservation fees and other litigation costs in this case are borne by Chenghu Company, Luo Mouhu and Zhang Mouyu.
[Court ruling].
First instance verdict: 1Chenghu Company shall pay the outstanding project price 25924184 to Zhang Mouping within 15 days from the effective date of the judgment$9;2.Chenghu Company compensated Zhang Mouping for 25924184The interest rate is calculated based on 9 yuan, which is calculated according to the bank's loan interest rate for the same period from August 14, 2018 to August 19, 2019, and according to the loan market ** interest rate announced by the National Interbank Funding Center for the same period from August 20, 2019 to the date of actual payment3.Luo Mouhu and Zhang Mouyu on the above.
The debts identified in items 1 and 2 shall be jointly and severally liable;4.Zhang Mouping paid 25924184 for the Anren County Building and Building Project he undertook to build the projectWithin the range of 9 yuan, the project has the priority right to be compensated for the price discounted or auctioned;5.Zhang Mouping's other litigation claims were rejected.
Second-instance verdict: 1Revoke the judgment of first instance;2.Chenghu Company shall pay the outstanding project payment 19143231 to Zhang Mouping within 15 days from the effective date of the judgment$22 and interest;3.Luo Mouhu is jointly and severally liable for the debts determined in the second item above;4.Zhang Mouping is 19143231 the Anren County Building and Building Project he undertook to buildWithin the scope of 22 yuan, the project has the priority to be compensated for the price of the discount or auction;5.Zhang Mouping's other litigation claims were rejected.
The Supreme People's Court's retrial judgment: 1. Revoke the second-instance civil judgment and the first-instance civil judgment. 2. Chenghu Company shall pay the outstanding project payment 19620942 to Zhang Mouping within 15 days from the effective date of this judgment$89 plus interest. 3. Luo Mouhu and Zhang Mouyu are jointly and severally liable for the debts determined in item 2 above. Fourth, Zhang Mouping is 19620942 the Anren County Building and Building Project he undertook to buildWithin the scope of 89 yuan, the project has the priority right to be compensated for the discount or auction price. 5. Reject Zhang Mouping's other litigation claims.
[Comment on the focus of the controversy].
oneChenghu Company owes paymentZhang MoupingHow should the price of the project involved in the case be determined
oneChenghu CompanyYesPayZhang MoupingThe price of the project involved in the caseAmount
The second-instance judgment found that the "Hunan Provincial Construction Project Construction Contract" signed by Zhang Mouping and Chenghu Company on October 29, 2016 was the contract actually performed by both parties, and the contract and the project cost appraisal opinion issued by Huaxin Cost Company and the "Reply to Judicial Appraisal Consultation Questions" were used as the basis for settlement between the two parties.
Although Chenghu Company, Luo Mouhu, and Zhang Mouyu objected to this in their retrial defense, the Supreme People's Court did not review their objections because they did not apply for a retrial and did not submit new evidence sufficient to overturn the aforesaid determination.
b).On the issue of the construction area of the project involved in the case
In this case, the appraisal opinion of the project cost involved in the case stated that the construction scope and construction area agreed in the contract of buildings A and B involved in the case were 38,12638 sq.m.;The "Real Estate Survey Report" involved in the case stated that the building involved in the case had "a measured construction area of 37,86426 square meters".
During the second-instance trial, when questioned, the appraiser said that the construction area was calculated based on the construction project drawings and the "Specification for the Calculation of the Construction Area of Construction Projects". It can be seen that the construction area contained in the appraisal opinion of the project involved in the case is the calculation result, and the construction area contained in the "Real Estate Survey Report" involved in the case is the actual measurement result. In the case of disagreement between Zhang Mouping and Chenghu Company on the construction area of the project involved in the case, the second-instance judgment adopted the construction area of 37,864 stated in the Real Estate Survey Report on the grounds that the "Real Estate Survey Report" was formed in the overall acceptance process of Chenghu Commercial Union Building and was verified and confirmed by the real estate management department26 square meters, and accordingly used as the basis for calculating the price of the project involved in the case, which is in line with the facts of this case and is not obviously improper.
c).AboutZhang MoupingThe question of the actual amount of construction
The project involved in the case consists of three construction stages: the pre-construction stage, the Zhang Mouping construction stage, and the construction stage of the sweeping project. Zhang Mouping applied for retrial and had no objection to the workload accounting of the last two construction stages.
For the pre-construction stage, Chenghu Company submitted evidence materials such as the construction site before Zhang Mouping entered the site and witness testimony in the second instance, claiming that the pre-construction was completed by Li, the actual builder affiliated with Xinyu Company, and Zhang Mouping objected to this. In this regard, the court of second instance specially organized all parties to conduct on-site investigation of the construction site to compare and confirm the aforesaid **, and at the same time informed all parties to notify the original construction personnel to go to the site to identify the construction scope, and then Li made the on-site identification, and Zhang Mouping did not arrange for the construction personnel to be present for no reason.
During the second-instance trial, Li and Peng, the supervisor of the project involved in the case, appeared in court as witnesses to participate in the litigation, and both proved that the pile foundation, bearing platform, steel columns and shear walls of the building involved in the case were constructed by Li. Accordingly, under the circumstance that Zhang Mouping did not submit evidence to prove that this part of the project was constructed by him, the second-instance judgment determined that the probative force of the evidence submitted by Chenghu Company was obviously greater than the probative force of the evidence submitted by Zhang Mouping in light of the specific circumstances of the case, and that the pile foundation, bearing cap, steel columns and shear walls of the building involved in the case were constructed by the actual builder Li, and there was a corresponding basis. Zhang Mouping's retrial asserted that the second-instance judgment did not calculate the construction amount to Li based on objective evidence such as construction drawings and cost conclusions, but the failure to submit new evidence was sufficient to overturn the aforesaid determination of the second-instance judgment, and Zhang's retrial could not be established.
In view of the fact that the "Meeting Minutes" and "Supervision Log" submitted by Chenghu Company, Luo Mouhu and Zhang Mouyu for the retrial intend to prove that before Zhang Mouping entered the site, Li had already carried out construction on the frame shear wall and the foundation of the building around the building, and the Supreme People's Court has supported this fact, so this part of the evidence will not be reviewed.
b).Whether the fees are included in the price of the project involved in the case
1.The concept of fees.
The fees in the construction and installation project refer to the fees that must be paid or calculated according to the provisions of national laws and regulations, including social insurance premiums, housing provident funds and other expenses. As a part of the project cost, the fee shall be borne by the construction unit or the employer in accordance with laws and regulations based on the actual payment of social insurance premiums and other fees by the contractor.
2.The fee that Zhang Mouping should receive.
Fei Mouping applied for a retrial and submitted the "Notice of Collection and Payment of Work-related Injury Insurance Premiums" and "Hunan Provincial Social Insurance ** Collection Receipt" as new evidence, asserting that he paid 71,876 yuan in accident injury insurance premiums and 126,840 yuan in work-related injury insurance premiums for migrant workers in the construction on April 18, 2017 and December 8, 2017 respectively in the name of the affiliated unit Xinjing Company.
Based on the ascertained facts in this case, Zhang Mouping is the actual builder of the Arai Company, and the construction project is the Anren County Building and Building, which entered the construction site from 2016 to 2018. In view of the fact that the aforesaid documents were issued during the actual construction period of Zhang Mouping, and the projects involved were also the projects involved in the case, and that the original documents were all held by Zhang Mouping, Chenghu Company, Luo Mouhu, and Zhang Mouyu all recognized the authenticity of this part of the evidence, and the fact that Zhang Mouping actually paid 198716 yuan in social insurance premiums (71,876 yuan and 126,840 yuan) in the process of contracting the construction project involved in the construction case is highly probable, and the Supreme People's Court confirmed it. The actual fee paid by Zhang Mouping should be paid by Chenghu Company to Zhang Mouping as part of the project cost fee.
Although the "Chenghu Business Union Building, Building Construction Project Cost Appraisal Opinion" has been accounted for in accordance with the relevant provisions 2677419The 94 yuan fee was included in the cost of the project involved in the case, and Zhang Mouping, as the actual constructor, objectively did need to hire construction personnel, and he should also pay social insurance premiums and other expenses for the construction personnel in accordance with laws and regulations, but in addition to the above two insurance expenses, Zhang Mouping could not provide other evidence that had actually paid the relevant fees, so Zhang Mouping retried and claimed the 2677419 of the cost appraisal institute94 yuan should be owned in its entirety, and the basis is insufficient and cannot be established.
c)., Luo Mouhu, Zhang MouyuOwed to Chenghu CompanyZhang MoupingWhether the price of the project involved in the case bears joint and several liability
oneLuo MouhuOwed to Chenghu CompanyZhang MoupingThe price of the project involved in the caseYesAssume joint and several liability
In this case, Chenghu Company was a one-person limited liability company, Luo Mouhu was the sole shareholder of Chenghu Company, and a large amount of funds were transferred to Luo Mouhu's personal account in the course of operation. In the case that Luo Mouhu could not prove that the property of Chenghu Company was independent of his own property, and in accordance with Article 63 of the Company Law of the People's Republic of China, which stipulates that "if a shareholder of a one-person limited liability company cannot prove that the company's property is independent of the shareholder's own property, he shall be jointly and severally liable for the company's debts", it was not improper to determine that Luo Mouhu should be jointly and severally liable for the project price owed by Chenghu Company to Zhang Mouping.
b).Zhang MouyuOwed to Chenghu CompanyZhang MoupingThe price of the project involved in the caseYesAssume joint and several liability
Chenghu Company is a limited liability company established by Luo Mouhu, and Zhang Mouyu served as the company's supervisor as Luo Mouhu's spouse, and from 2017 to 2018, Chenghu Company transferred 7995017 yuan to Zhang Mouyu's personal account, and Zhang Mouyu transferred 4702240 yuan to Chenghu Company's account.
It can be seen that Zhang Mouyu actually participated in the operation and management of Chenghu Company, and his property was obviously mixed with that of Chenghu Company. Zhang Mouping's retrial assertion that Chenghu Company was a "typical mom-and-pop shop" and that the debts involved in the case were joint debts of Luo Mouhu and Zhang Mouyu were the joint debts of husband and wife, and there was a basic factual basis.
Under the circumstance that Luo Mouhu should be jointly and severally liable for the project money owed by Chenghu Company to Zhang Mouping in accordance with the law, the first-instance judgment determined that Zhang Mouyu should also be jointly and severally liable with Luo Mouhu based on the above facts, which is in line with Article 3 of the original Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Debts between Husband and Wife (implemented in 2018) Where a creditor claims rights for debts incurred by one of the husband and wife in his or her own name during the existence of the marital relationship in excess of the daily needs of the family on the ground that they are joint debts of the husband and wife, the people's court shall not support them, except where the creditor can prove that the debts were used for the husband and wife's common life, joint production and operation, or based on the common intention of the husband and wife", which is also conducive to reducing the litigation burden of the parties and facilitating the one-time resolution of conflicts and disputes;The second-instance judgment was improperly modified, and the Supreme People's Court corrected it in a retrial.