Settlement sequence and settlement object of general subcontracting

On April 7, 2002, the plaintiff Shanghai Candace Flynn Doors and Windows Co., Ltd. and the defendant Yangzhou Construction Engineering Company signed the Building Doors and Windows Manufacturing Contract, stipulating that the plaintiff would provide the defendant with Lu alloy doors and windows and installation. In May 2003, after the project was completed, both parties confirmed that the project cost was 8,665,438+0,654,38+068.54 yuan. The defendant has paid 765,438+00,000 yuan, and still owes 65,438+0,654,38+068.54 yuan.

The plaintiff sued the People's Court of Pudong New Area where the doors and windows were installed on August 29th, 2005, demanding the defendant to pay the arrears and interest losses.

The defendant raised an objection to jurisdiction in Yangzhou based on his domicile, and the Pudong New Area People's Court rejected it according to law; The defendant appealed, and the Shanghai No.1 Intermediate People's Court ruled that the appeal was rejected.

The evidences provided by the plaintiff are: 1, the contract for manufacturing building doors and windows, which proves that the original defendant existed in contract relationship; 2. The project settlement list and its attachments (project visa form), which are used to prove the project payment confirmed by both parties, as well as the amount recorded in the engineering quantity statistics and project visa form; 3. Payment voucher, which proves that 765,438+00,000 yuan has been received, and the last payment date is September 2003; 4.2. The reminder and courier dated July 26, 2005, which prove that the plaintiff has received the money and the defendant has signed for it.

The defendant argued that the total project cost was 780,924.54 yuan, of which 7 10000 yuan had been paid and only 70 168.54 yuan was owed. The reason for not paying is that the plaintiff's unfinished project has quality problems and the breach of contract is prior. Moreover, only 95% of the project payment period was agreed in the contract, and the remaining payment date was not agreed, so the defendant did not pay overdue.

The difference between the original defendant and the defendant in the project payment was identified in four project visa forms. The plaintiff believes that the project visa form records the workload and project payment, which was added by the plaintiff at the request of the defendant, and the defendant should pay the project payment. The defendant believes that the project visa form was formed between May 2002 and June 2003, 65438+ 10, and the engineering quantity statistics was formed in May 2003, 65438+April, so the project payment settlement has included the workload of four project visa forms.

In response to the defendant's defense, the plaintiff thinks that the defendant is the general contractor and the plaintiff is the subcontractor. When the plaintiff completes the project instructed by the defendant (changed at the request of the employer), the defendant shall bear the project payment. The defendant claimed to the employer that the project delivered by the plaintiff was all quantities, which was in line with the project settlement order in the subcontracting relationship. Moreover, the items recorded in the four engineering visa forms are not included in the statistics of quantities, and are independent (change items) workload.

The defendant also recorded in the column of Party A in the four engineering visa forms that it was the owner, not the defendant, to prove that the engineering change was required by the owner, and the plaintiff should claim it from the owner even if he claimed it. Moreover, the position of the defendant's seal is not in the column of Party A, but in the margin.

For this defense of the defendant, the plaintiff asked the plaintiff to change the project because the defendant accepted the owner's (employer's) change instruction. Of course, the owner (employer) is recorded in the column of Party A, not the defendant, so it is certainly impossible for the defendant's Zhang to stamp at the employer, which is in line with the defendant's status as a general contractor. There is no legal relationship between plaintiff and owner (employer).

As for the defendant's so-called engineering quality problem, the defendant refused to accept it for the court on the grounds that there was no evidence.

The defendant's so-called 5% project payment date is not agreed, and non-payment does not constitute an excuse for breach of contract, and because its non-payment far exceeds 5%, and the project has been completed for three years, it is self-defeating.

The court of first instance ruled that the defendant paid the plaintiff the project payment and interest of 70,920.54 yuan.

Regarding the rejection of engineering visas by the court of first instance, after learning that the defendant claimed four engineering visas from the owner, the attorney supplemented the cost consultation file of Jinyuan Commercial Center Project, and proved the engineering contents of the four engineering visas claimed by the plaintiff, which the defendant claimed from the owner.

In the second trial, the attorney further revealed that the appellee (the defendant in the original trial) concealed the truth and demanded the appellant to claim compensation from the owner in order to achieve the purpose of embezzlement, regardless of the legal relationship of subcontracting, which had no legal basis and violated human morality.

Shanghai No.1 Intermediate People's Court adopted the lawyer's point of view, revoked the first-instance judgment and changed the judgment to support the appellant's claim.

Court of First Instance Shanghai Pudong New Area People's Court

CaseNo. (2005) Pu Min Er (Shang) Chu ZiNo.. 25 15

Judge Lu Yunhua

Court of second instance Shanghai No.1 Intermediate People's Court

CaseNo. (2006) Hu Yi Zhong Min Si (Shang) Zhong Zi No.438

Examiner Jison Cai Qianyun Xu Yuefeng

Authorized Agent: Mo, lawyer of Shanghai Law Firm.

Shanghai Shang Hui Law Firm Mao Jianying