Author: Lawyer Wang Daoyong Arbitrator Partner Senior Engineer Cost Engineer
1. Case Index
Supreme Court "Second Instance Civil Judgment of Ningxia Hongtianfang Real Estate Co., Ltd. and Zhejiang Chuangye Construction Engineering Co., Ltd. Construction Project Construction Contract Dispute" Case No. (2020 ) Supreme Court Civil Final No. 971, ruling date October 28, 2020, presiding judge He Bo.
2. Brief introduction to the case
Contract issuing party: Hongtianfang Company
Contractor: Startup Company
Focus of dispute: The construction party failed to construct the shear wall according to the drawings and the additional steel bar cost of 3,501,398 yuan should be paid by the contract issuing party?
The Ningxia High Court of First Instance held that the different engineering quantities of the shear wall steel bars for all buildings were calculated based on the 08 quota by the appraisal agency based on the project confirmation form submitted by the startup company on September 8, 2013 and the supervision work contact form on September 11, 2013. Hongtianfang Company did not recognize the difference in project quantities on the grounds that the project confirmation document had not been confirmed by it. After verification, the two documents were original and signed and confirmed by the construction and supervision units. Although Hongtianfang Company believed that the difference in the amount of steel bars was due to the fault of the construction unit, it did not submit valid evidence to prove it, so the steel bars were added to the shear wall. The difference in cost of 3,501,398 yuan should be included in the project cost.
After the first-instance verdict, Fanghong Tianfang Company, which issued the contract, appealed to the Supreme Court.
3. Summary of the Supreme Court’s judgment
The second trial also found out: 1. The relevant contents of the "Project Confirmation Form", "Supervision Work Contact Form Reply" and " Construction Contract " involved in the shear wall project. 1. The "Project Confirmation Form" produced by the startup company on September 8, 2013 stated: "About the confirmation of the steel bar binding of the completed project. As of the morning of September 8, 2013, the startup company has completed the following project quantities: Building E3 has completed 24 The concrete pouring of the structural beams and slabs on the 21st floor of Building E1E2 has been completed; the concrete pouring of structural beams and slabs on the 18th floor of G3G4 has been completed; C3# of Building C3C4 has completed the tying of steel bars on the 12th floor beams and slabs; C4# has been completed. 11-story beam-slab steel bar binding; Building D1D2D3 has entered into the second-story beam-slab steel bar bonding project. The shear wall steel bar arrangement of the above building numbers: For example, the longitudinal distribution bar is 2φ8/10@200, and the startup company actually tied it into shape according to the design requirements. 2 rows of φ8@200+φ10@200; horizontal distribution ribs of 2φ8/10@200. The startup company actually tied them into 2 rows of φ8@200+φ10@200 according to the design requirements. "The confirmation form has the signature of the supervisory unit at the signing place. And annotated "the construction method is true". 2. On September 11, 2013, the "Reply to the Supervision Work Contact Sheet" produced by the startup company stated: "After receiving the design change of the superstructure shear wall 2φ8/10@200 from Zeng Gong, the design institute, the construction party Chen Weirong, Yi Xuegui and Cheng Jingxin had objections and went to the office of Supervisor Gao to confirm the specific method. At that time, Mr. Gao didn't know which method was correct and asked the construction worker Chen Weirong to call to confirm. Chen Weirong asked on the phone hands-free: Is the spacing between φ8 is 200, whether the distance between φ10 is 200, and whether the distance between φ8 and φ10 is 100. After everyone heard the design reply "yes", the supervisor Gao said that now there is only one way to design the reply, and the startup company started The steel bars were laid out and the construction was carried out normally until September 8, 2013. There were two methods on the sixth floor of the C5C6 building in Shaanxi Jingwei and the other C1C2 and G1G2 buildings. After Shaanxi Jingwei consulted the startup company and Zhejiang Hongcheng chief engineer, they both said it was designed. After the construction company called back, we learned that there were two methods. The construction party called again to confirm. The second reply from the designer Zeng Gong was different from the first reply. The construction party Chen Weirong, Manager Bai Yu, Supervisor Gao, and Party A Zhang Gongsi. After consultation with Party A, Party A asked the construction party and the supervisor to confirm the quantity of work completed on the morning of September 8, so as to solve the settlement method of the quantity of work and propose the upper construction method. Now the construction party has changed the upper construction arrangement method, such as If the supervisor has objections, please provide clear construction methods.3. The General Contract Clause 1.1.2.2 of the second part of the "Construction Contract" involved in the case stipulates that "the supervisor is a legal person or other organization that is specified in the special contract clause and is entrusted by the contractor to supervise and manage the project in accordance with legal provisions." ; Article 4.1 The general provisions of the supervisor stipulate that “the supervisor shall, in accordance with the authorization of the contractor and legal provisions, inspect, inspect, review and accept matters related to the project construction on behalf of the contractor, and issue relevant instructions. However, the supervisor shall not has the right to amend the contract and has no right to reduce or exempt the contractor from any responsibilities and obligations stipulated in the contract. Article 4.3 of the General Contract Clauses of Part Two of the "Construction Contract" stipulates that "The supervisor shall issue supervision instructions in accordance with the authorization of the contractor. The supervisor's instructions shall be in writing and signed by his authorized supervisor. Urgent Under certain circumstances, in order to ensure the safety of construction workers or avoid damage to the project, the supervisor may issue an oral instruction, which has the same legal effect as a written instruction, but a written supervision instruction must be issued within 24 hours after the oral instruction is issued. , the reissued written supervision instructions shall be consistent with the oral instructions. The instructions issued by the supervisor shall be delivered to the contractor's project manager or the person authorized by the project manager to receive the instructions due to the supervisor's failure to issue instructions as agreed in the contract, or the instructions are delayed or issued. If wrong instructions lead to an increase in the contractor's costs or a delay in the construction period, the contractor shall bear the corresponding responsibility. If the contractor has any questions about the instructions issued by the supervisor, he shall submit a written objection to the instruction, and the supervisor shall respond to the instruction within 48 hours. If the supervisor fails to respond within the time limit, the contractor shall have the right to refuse to carry out the above instructions. opinion, it shall be deemed to be approved, but it shall not exempt or reduce the contractor's responsibilities and obligations for the work, project, materials, engineering equipment, etc. "
The Supreme Court held that the 3,501,398 yuan increase in shear wall steel bars should be included in the calculation. The problem of project payment. In the second instance, both parties agreed that no design changes had been made to the shear wall part during the construction process, and they did not object to the objective fact that the additional steel bars were increased by 3,501,398 yuan as determined in the appraisal opinion. However, they did not agree with the burden of the 3,501,398 yuan project price , both sides hold one word each. This court believes that based on the contents stated in the "Project Confirmation Form" on September 8, 2013 and the "Reply to Supervision Work Contact" on September 11, 2013, it can be determined that although the startup company did not understand the engineering design drawings during the construction process, The misunderstanding resulted in inappropriate actual construction methods. However, the company actively communicated with the supervisory unit and the contractor Fanghong Tianfang Company on September 8 and September 11, 2013, explaining its specific opinions on the construction methods of the shear wall steel bars. . According to Article 64 of the "Civil Procedure Law of the People's Republic of China" which stipulates that "the parties concerned have the responsibility to provide evidence for their own claims", Hongtianfang Company, as the contractor of the project involved in the case, failed to provide evidence to prove Issue instructions in a timely manner on the issues reported by the above-mentioned startup companies, requiring the startup companies to correct or improve the actual construction methods used. Refer again to the agreement in Part 2 General Contract Clauses 1.1.2.2 of the "Construction Contract" regarding "The supervisor is a legal person or other organization that is specified in the special contract clauses and is entrusted by the contractor to supervise and manage the project in accordance with legal provisions", and Paragraph 2 of Article 4.3 of the General Contract Clauses of Part II of the contract states that “Instructions issued by the supervisor shall be delivered to the contractor’s project manager or a person authorized by the project manager to receive them. Due to the failure of the supervisor to issue instructions as stipulated in the contract, the instruction being delayed or "If wrong instructions are issued, resulting in an increase in the contractor's costs or a delay in the construction period, the contractor shall bear the corresponding liability", it should be determined that Hongtianfang Company was at fault for its behavior during the above construction process and that the differences in the shear wall reinforcements 3501398 Should bear corresponding responsibility for the occurrence of Yuan losses. With reference to the provisions of the "Construction Contract", as well as the actual situation of this case and the respective degrees of fault of both parties, this court determined that Hongtianfang Company and Startup Company should each bear 50% responsibility for this part of the loss, that is, Hongtianfang Company was responsible for the 1,750,699 yuan project payment. No payment will be made. The court of first instance determined that it was wrong to include all 3,501,398 yuan in the project payment, and this court corrected it in accordance with the law.
IV. Enlightenment and Summary
In this case, the construction party objectively did not construct according to the drawings, and the contractor did not make any design changes. When the construction party was not sure about the understanding of the drawings, it had already asked the supervision and design institute for instructions. The construction party started construction after the design institute responded. Under such circumstances, it is obviously unreasonable for the contracting party not to assume responsibility. In view of this, the Supreme Court determined that Hongtianfang Company and Startup Company should each bear 50% responsibility for this part of the loss based on the provisions of the Construction Contract, as well as the actual circumstances of the case and the respective degrees of fault of both parties.
Therefore, we cannot generalize the amount of overwork caused by the construction party's failure to construct according to the drawings. Instead, we must bear responsibility based on the performance of the contract and the faults of both parties.
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