Preface
Preface: my country's engineering supervision system started in 1988 and has been in development for more than 30 years. Engineering supervision is a kind of paid engineering consulting service in nature, and the service content mainly includes engineering cost, construction period, quality, safety control, etc. It should be said that the implementation of the engineering supervision system has played a certain role in supervision and protection for the legal and normal development of the construction industry, but there is also a widespread phenomenon of "supervision without supervision", which often triggers various disputes in the supervision field. The author, through the exchange of ideas and experience in handling supervision contract disputes, hopes to arouse more thinking and attention on the process of signing and performing construction supervision contracts.
1
Basic case
Company A and Company B signed the "Construction Project Entrusted Supervision Contract" on January 30, 2013, agreeing to entrust Company B as the supervisor of the project (project size is about 141,820 square meters), and the project supervision service remuneration is RMB 10.5 per square meter (Fixed unit price) Calculated, no supervision fee is paid in advance, 20% of the contract price is paid after the basic project is completed, 20% of the contract price is paid after the main project is completed on the second floor, and 20% is paid after the main project is completed and passed the client's acceptance. The general contractor shall pay 20% of the contract price after the completion of the interior and exterior wall painting (or curtain wall) work and the client’s inspection and acceptance, and the general contractor shall pay 10% of the contract price within 30 days after the general contractor completes all the projects in the general contract and passes the client’s acceptance. %. After the project has passed the acceptance check and completed all the supervision work according to the regulations (completion of all supervision work such as the compilation and filing of supervision materials and supervision evaluation reports), 10% of the contract will be paid within 30 days after the expiration of the quality warranty period. The supervision service period is 720 days (including a 360-calendar-day quality warranty period, that is, the supervision service period is 1080 days in total). The service period starts from the day when the supervisor actually enters the site. The content of the supervision work is all construction supervision activities during the construction phase of the contract until the expiration of the agreed warranty period, including all the content (including changes) covered by the project design. The specific content is the implementation of project period target management, quality target management, and cost target management , Contract management, information management organization and coordination and safety supervision work. After the contract is signed, Company A shall pay Company B the first, second and third phases of supervision service fees of RMB 297,822 (141820*10.5*20%) on December 6, 2013, March 21, 2014, and December 3, 2014. ), 297822 yuan (141820*10.5*20%), 297822 yuan (141820*10.5*20%).
Since the 720 calendar days of the supervision service period stipulated in the original supervision contract had expired, but the supervision work of Company B was only completed to the main project, the two parties negotiated on how to pay the subsequent supervision fees and finally formed a "Supplementary Agreement." The agreement stipulates that the service period of the supervisor shall be extended accordingly, and the specific extension period shall be from January 1, 2015 to the completion date of the completion and acceptance of the project (the actual deadline for the service of the supervisor shall be subject to the written notice of the client). The service fee due to the supervisor within the time limit stipulated in this contract is 60,000 yuan/month. After the signing of the supplementary agreement, Company A paid Company B a total of RMB 2010,000 for the supervision service fee from January 2015 to October 2017. Company B officially retired on May 1, 2018. In the later stage of the supervision service (November 2017 to April 2018), Company B reduced the number of on-site supervisors without the consent of Company A, and also confirmed that the on-site supervisors did not conform to those stipulated in the supplementary agreement, and Company A’s breach of contract caused Company A Unpaid supervision remuneration for six months before leaving the site. Company B filed a lawsuit to the court and demanded that Company A pay the remaining supervision fee of 595,644 yuan under the "Construction Project Entrusted Supervision Contract" and the supervision service fee of 360,000 yuan and interest of 131035.46 yuan during the extension period under the supplementary agreement.
2
First instance verdict
The court of first instance held that the solution to the problem lies in determining whether the supervision remuneration clause of the supplementary agreement and the original relevant clauses of the construction project entrusted supervision contract are a parallel relationship or a modification or substitution relationship. The supplementary agreement was signed by Company B and Company A when the 720 calendar-day supervision server agreed in the construction project entrusted supervision contract expires, but the construction project has not been completed, and the payment conditions of the remaining 40% of the supervision remuneration cannot be achieved in a short time. The content involves the extension of the supervision service period, the calculation method of the supervision remuneration and the payment period, so the original supervision fee clauses of the construction project entrusted supervision contract shall be regarded as changed if the supplementary agreement does not specifically stipulate that it continues to be effective. The relevant provisions of the supplementary agreement shall be replaced. Moreover, the supervision remuneration standard stipulated in the supplementary agreement is roughly the same as the supervision remuneration stipulated in the construction project entrusted supervision contract after deducting the quality warranty period. The payment terms and payment period are more concise and convenient, which is more convenient for the supervisor B Company In terms of greater operability and predictability, the understanding of changes in related clauses is more reasonable and will not lead to a major imbalance of rights and obligations. On the contrary, if it is determined that the supervision remuneration clause of the supplementary agreement and the relevant clauses of the construction project entrusted supervision contract are juxtaposed and applicable at the same time, it will result in the supervision of the same project of Company B receiving two remunerations, which violates the principle of fairness and reasonableness, and does not conform to both parties The original intention of signing the supplementary agreement. Therefore, after the supplementary agreement is signed, the supervision remuneration of the construction project involved in the case shall be performed in accordance with the supplementary agreement, and Company A does not need to pay the remaining supervision remuneration of the construction project entrusted supervision contract. In the end, it was judged that Company A should pay Company B a supervision remuneration of RMB 120,000 and interest losses, and Company B’s other claims were rejected.
3
Second instance verdict
The court of second instance held that the work performed by Company B after signing the supplementary agreement with Company A was a continuation of the unfinished scope and content of the original contract. The supplementary agreement signed by both parties only stipulated that the supervisory service remuneration after January 1, 2015 shall be monthly Calculated at 6000 yuan, but did not explicitly accumulate the supervision fee calculated on the basis of the original contract to company B at the same time. Therefore, the contract should continue to be performed according to the modified agreement. The court of first instance held that company A does not need to pay the original contract according to the supplementary agreement. There is nothing wrong with the remaining supervision remuneration under this item. However, in view of the fact that Company B had submitted a written application to Company A on January 4, 2016 for the payment of 20% of the supervision remuneration agreed in the supervision contract, which was calculated as RMB 297,822, the project supervisors C and D of Company A submitted the above-mentioned project supervision in Company B the next day The payment application form has been signed and approved and agreed to be paid in accordance with the supervision contract. Therefore, C and D, as the person in charge of the project involved in the case of A company, signed on the above application form to agree to pay is a duty behavior, and the effect of their behavior is in company A, and company A shall bear the corresponding legal consequences. Therefore, it was judged that Company A should pay Company B a supervision remuneration of RMB 417,822 (120,000+297822) and corresponding interest losses. (Note: RMB 297822 is actually 20% of the original supervision contract)
4
Research and analysis
(1) The key to the trial of this case is whether Company A still needs to continue to pay the remaining 40% of the supervision remuneration in accordance with the construction project entrusted supervision contract. As the agent of Party A, we believe that the changes in the supervision remuneration clauses of the supplementary agreement and the replacement of the original relevant clauses of the construction project entrusted supervision contract are in line with the true intentions of both parties in the contract and the principle of fairness and reasonableness. The following agency opinions have been given by the two levels of courts Adopted.
1. The construction project entrusted supervision contract stipulates the supervision work content for all construction supervision activities during the construction stage of the contract until the agreed warranty period expires. The project supervision service remuneration is calculated at RMB 10.5/square meter (fixed unit price), namely Company B After completing all the construction supervision activities mentioned above, a total fixed supervision remuneration of 1,489,110 yuan can be collected. The construction project commissioned supervision contract is to calculate the supervision remuneration based on the construction area. Assuming that the construction project supervision work is completed earlier than the agreed time, the supervision remuneration will not be reduced due to this. Therefore, B company said that the supervision business charges are based on the actual supervision time. There is no basis for the statement.
2. On the contrary, the contractual purpose pursued by Company A as the principal is to obtain the results of the commissioned supervision work with the least supervision remuneration. The premise for the signing of the supplementary agreement is that Company B has not completed all construction supervision work during the construction phase until the agreed warranty period expires, but the agreed 720 calendar-day supervision service period has expired, and the completion time of the construction project cannot be accurately estimated. In the case that Company A needs Company B to continue to perform its subsequent contractual obligations, it would be unfair for Company B to calculate the supervision service fee based on the engineering quantity. Therefore, in the case that the project completion and acceptance time cannot be accurately predicted, both parties comprehensively consider that Company B will receive a monthly supervision fee of RMB 62,046.25 (141,820 square meters * 10.5 yuan/square meter) during the original contract service period (excluding the warranty period) /24 months), and then negotiated and determined that Company A would pay Company B the supervision service fee from January 1, 2015 to the completion date of the completion and acceptance of this project at a monthly rate of 60,000 yuan, and Company B would continue to complete the remaining supervision work. In fact, the supervision remuneration paid by Company A was 2,903,466 yuan, which was about twice the fixed supervision remuneration agreed in the original contract.
3. Article 2 of the "Supplementary Agreement" stipulates: "The supervising person shall receive a service fee of 60,000 yuan/month within the time limit agreed in this contract (that is, from January 1, 2015 to the completion date of the project completion acceptance). Both the literal interpretation method and the purpose interpretation method can reach a consistent conclusion, that is, the period from January 1, 2015 to the completion of the project acceptance (the actual deadline for the supervisor’s service is subject to the client’s written notice) , That is, the service fee due to the supervisor within the time limit for completing all the remaining supervision tasks is 60,000 yuan/month. The supplementary agreement pays the supervision fee on a monthly basis. The service period overlaps with the 40% progress payment period of the original contract, and the content overlaps. The later supervision fee paid close to the average monthly supervision fee of the original contract is sufficient to meet the remuneration requirements of Company B. If Company B needs to charge a monthly supervision fee of 60,000 yuan for the remaining supervision work, and also charge a progress supervision fee according to the original contract, it will There is a situation in which the supervisor does not change the supervision content, but doubles the supervision fee. This is extremely unfair compared to Company A, and it also violates the original intention of the two parties.
(2) When the court of second instance found that Company A no longer needed to pay the remaining supervision fees under the original contract, it only required Company A’s project leader to sign and approve the payment in accordance with the supervision contract, and then rule that Company A should bear it. The 20% supervision fee of the original supervision contract is self-contradictory. The author believes that whether the content of this part of the judgment is correct or not is open to question. First of all, since the court of second instance denied the 40% payment obligation stipulated in the original supervision contract, the literal understanding of the staff of Company A’s remarks "agree to execute in accordance with the supervision contract" should be implemented in accordance with the supplementary agreement as a component of the supervision contract. Secondly, the application form for payment of project supervision fees is different in nature from the addition of the project visa form, and does not have the requirements for the establishment of a contract, that is, the application and approval do not constitute an offer and commitment of 297,822 yuan separately, but a payment based on the contract. The process or procedure, in essence, should not have the legal effect of making new offers and promises. In addition, according to the trading habits of the construction industry, generally, there should be funds determined by the contract or visa first, and the payment application and approval procedures will only occur when the payment conditions are met, and the payment application form will not be directly used to form definite claims and debts .
5
Case handling experience
As the attorney of Company A, the author has made many thoughts and arguments in the process of representing the case, and the judgment results have reached expectations except for the part of the second instance revision. The author believes that this case has a certain degree of trial representativeness and practical guiding significance. For example, the parties to the construction project should firstly consider the supervision remuneration, supervision time, and work content when signing the supervision contract, and formulate long-term benefits Guarantee clauses to avoid disagreements; the second is to pay attention to the signing, replying, and receiving skills of various documents and correspondence in the process of performance to avoid negative legal consequences.
