Gansu Dunhuang International Hotel Company Limited and the China Architecture Design Institute of the Northwest, ...

 Gansu Dunhuang International Hotel Company Limited and the China Architecture Design and Research Institute of Northwest Gansu Province, the fourth construction companies owed for projects
facilities, quality disputes, appeals
2001   7   9 announcement released Act ( 2001), No. 26, the Supreme People's Republic of civil judgments

the appellant (the trial the defendant, counterclaim plaintiff): Gansu Province, Dunhuang International Hotel Company Limited, Dunhuang City, Gansu Province, home to Ming Road 28. < br> Legal representative: Zhang synonymous, chairman of the board.
Agent: Wang Hui, Beijing million constant thinking law firm.
Agent: Wu Gang, the Beijing million constant thinking law firm.
appellant (third trial): China Northwest Building Design Institute, Xi'an, Shaanxi Province, home to seven Road 173 West.
Legal representative: Fanhong Kang, president.
agent : Wing Keung, Raymond, the hospital cadres.
Agent: Xuejun Song, Beijing Dacheng Law Firm.
Appellee (plaintiff, counterclaim defendant): Fourth Construction Company of Gansu Province, Gansu Province, home to District Social Welfare Lanzhou West Road 369, solid.
Legal representative: Mr Justice, the manager.
Agent: Ma Haitao, director of the Office of the company.
Agent: Guzong Lei, vice president of the company engineer.
third trial: Bureau of Geology and Mineral Resources of Gansu Province Hydrogeology and Engineering Geology Team, the third, the domicile of Jiuquan City, Gansu Province, No. 22 Jiefang Road.
Leader: keep cattle country, the team captain.
agent: Fu-Sheng Liu, the team of cadres.
Agent: Yansan Cheng, Jiuquan, Gansu Province, Yang Guan Lawyer.
International Hotel Dunhuang in Gansu Province (hereinafter referred to as the Dunhuang Hotel), China Northwest Building Design Research Institute (hereinafter referred to as the Northwest Institute) and Gansu Province to the Fourth Construction Company (referred to as the provinces and four in non-construction), the third trial of Geology and Mineral Resources of Gansu Province, the third Hydrogeology and Engineering Geology Team (hereinafter referred to as the geological Team) outstanding payments, quality dispute case, an appeal against the High People's Court in Gansu Province (1998) No. 22, Min Chu Zi Gan civil judgments, this court appeal. the Court shall form a collegial panel conducted a hearing on the case has been trial end.
has examined: May 8, 1993, at the Dunhuang Hotel, and the provinces and four construction preparation signed the , outdoor facilities and ancillary works, 8 May 1993 started August 1, 1994 completion; tentative contract price of RMB 1,200 RMB yuan (price of China Construction Bank, subject to approval), for projects commissioned by the Construction Bank according to the progress of loan disbursement; project to the provincial superior quality grade, reward 50,000 yuan. projects started on schedule, the result of exploration in the organization trough fiber found discrepancies with the actual geological data required to modify the design, in the same year suspension on June 1 until the resumption of construction in late October. construction process, the Dunhuang Hotel, failed to allocate for projects as agreed, in addition to several local design changes caused by repeated construction period severely affected.
1995 年 4 28, Dunhuang Hotel, and the provincial construction office building six four-branch signed the start date, completed July 31 the same year, the warranty period of three months. In the same year on August 29, at the Dunhuang Hotel, preparation and construction of six provinces and four branch signed a other than the price of four million yuan renovation of the rooms contracted to build six provinces and four branches, works in the same year began Sept. 1, January 28, 1996 completion of the warranty period of one year. In the same year on October 10, Dunhuang Hotel and construction of six provinces and four branches with the signing of The door 70 million packages a one-time death.
1996 年 1 month, these projects completed. Dunhuang Hotel, and the provinces and four built under contract by the Dunhuang Hotel, commissioned by the China Construction Bank branch in Dunhuang City January 18, 1995 and August 19, 1996 on the construction and installation cost of the settlement, built by the Provincial IV, Dunhuang Hotel, three engineers and technicians on-site to measure and verify, confirm the project cost is 31.075.464 dollars, by the tripartite co-signed and sealed. Dunhuang Hotel, and the province also built the two sides in four 6 January 1996 and 29 confirmed the signing of the original budget, excluding parts and outdoor construction cost 800,095 yuan to 5,070,139 yuan decorating project cost: cost of renovation works at the contract is 400 million. Dunhuang Hotel over the total for the 40,945,698 million total project cost. In the same year on April 17, the provincial building and the Dunhuang Hotel, four finance staff on both sides have to pay for projects, the debt to be checked to confirm the Dunhuang Hotel 35,144,392.40 dollars paid for projects (including for equipment 1,674,553 million), outstanding 5,801,305.60 yuan, of which provinces and four construction project cost is 24,826 dollars without making.
Earlier, at the Dunhuang Hotel, December 26, 1995 on the construction installation the completion and acceptance of engineering organizations, views are Provincial Engineering Quality Supervision Station retesting was assessed as Gansu Provincial Construction Committee quality model works. In the same year on January 29, Dunhuang Hotel renovation works carried out on acceptance, opinion is equipment and furniture intact, it can be accepted maintenance rectification. In the same year on June 4, Dunhuang Hotel Management Engineer Liu Guorui built in the provinces and four Guan Zi affix the official seal of the Dunhuang Hotel; the same day, a large wine bitter over the entire Dunhuang Project; July 11, Dunhuang Hotel, Dunhuang City, Urban Construction Bureau to submit a Dunhuang Hotel does not pay for costs associated with acceptance not on schedule. Here, the Dunhuang Hotel, and repeatedly asked the provinces and four construction projects on the completion of maintenance problems in the rectification, provinces and four construction contract warranty by many sent to the drain, room furniture, decoration and other aspects of the issues corrective .1997 January 22, Dunhuang Hotel Xueyong Shen, head of the original works signed off month trial at the beginning of Dunhuang hotel business. provinces and four built this in the same year on March 26, April 2, April 3 letter to the Dunhuang Hotel on three occasions to inform the project without the acceptance of national engineering quality supervision department shall not be put into use, and to ensure quality control as soon as possible contact with the organization and acceptance. but without the acceptance of the Dunhuang Hotel, the project is still fully operational business, is still in use .1997 in June, the Ministry of Dunhuang hotel rooms on the first floor main building of non-load bearing walls Cracks began to appear locally. In the same year on July 21 orders, Gansu Province, Dunhuang for Quality Supervision Station Hotel engineering quality problems, to convene the relevant departments in-spot investigation, based on the formation of a Minutes proposed for disposal. provinces and four built the outstanding payments to the grounds to the courts to request payment of the Dunhuang Hotel, outstanding payments and late fees, etc. 5.801.305.60 dollars .1998 December 7, Dunhuang Hotel, built as a defendant in four provinces, the Northwest Institute, Geological Team for the third person to file a counterclaim, requesting compensation for the first floor of the losses caused by quality problems and schedule delays 5.355.640 million breach of contract, etc..
the first instance, the Court of First Instance of Dunhuang Hotel, according to the request, the quality of commissioned projects in Gansu Province monitoring station on the quality of the Dunhuang Hotel project identification and review, concluded that the cracks caused by the first floor of the main reasons for non-load bearing walls are: the design of the Northwest Institute of the vertical and horizontal load-bearing layer from the wall (240,120 thick brick wall) did not set the foundation beam, wall (370 thick brick wall), although the original design of foundation beam, and then agreed to withdraw; drainage pipes laid low standard (indoor buried pipes); design 4.2m thick cushion and because backfill weight of the wall for the foundation: the basis of the vertical wall of the gap between the wall and the trench is less than 10cm and national issues such as the promulgation of the standards; compaction of backfill is not dense and their ordering of individual cast iron pipe used in drainage pipe wall thickness and thin, with long rupture running water, is causing severe cracking of the direct cause of the wall; frame columns and the wall, the vertical wall and septum Rachel Wall, poor quality is caused by vertical cracks between the wall and frame, and one of the bathroom wall cracks, No waterproofing measures, after the front lawn and flower beds floor to dig up soil treatment, irrigation, so that part of the soil is saturated, leading to some of the water intrusion base of the wall, softening the base soil and speed up the foundation soil subsidence; design units without consent , decided to cancel the room without the closet brick wall, causing part of the corridor walls vertical tilt. arched roof drift compression: engineering properties of soil test does not pick up a comprehensive and in-depth evaluation, to the design, construction and quality control of the backfill caused by vague concept, Northwest Design Institute, geological team considered that the quality of the Dunhuang Hotel, engineering problems and had nothing to do; provinces and four built on part of the responsibility relating to be recognized.
1999 年 8 on 5, Gansu Province, the construction committee in provinces and four building Dunhuang Hotel, a layer of non-bearing wall cracks in the main building is directly responsible to remove the Dunhuang Hotel, the title of model projects for the province of high-quality decisions. our court during the Full Court in conjunction with the Dunhuang Hotel, provinces and four built three Northwest Institute Dunhuang Hotel with view on the first floor construction quality situation. Since the base of soil subsidence, ground floor rooms within the Ministry of part of the tilt wall, added a layer of Dunhuang Hotel rooms closed above the second floor to continue their business. According to the tripartite introduction, Dunhuang Hotel Project uses a frame structure, due to ground subsidence, the first floor of non-load bearing walls, cracks, tilting, not to affect the use of the second floor above.
court of first instance after hearing that the provinces and four building and the Dunhuang Hotel signed four contracts (agreements) are legal, valid, legitimate rights and interests of both sides should be protected by law. Province Dunhuang Hotel Four construction request reimbursement of arrears and compensation for the claims of bank interest, there are two sides signed the contract (agreement) , project completion and acceptance of orders, signed and sealed by both parties recognized by the Dunhuang City, China Construction Bank settlement of the contract price approved by the audit books and April 17, 1996 for verification project has been both the financial payments, arrears and other evidence confirm that the materials, according to the law should be supported. but no construction projects for the works should be deducted the amount owed project. Dunhuang Hotel, argued that the construction project approved by the audit settlement bank shall not real, should be entrusted to audit the project for its settlement amount as payment settlement project the sole, legitimate, valid credentials, and thus on the grounds that the money overpaid the project, requiring construction of the return of four provinces, the audit commissioned by hotel unilateral breach of the contract signed between the two sides agreed terms, is untenable, not to credible. provinces and four construction required to pay provincial Dunhuang Hotel, excellent project award that the claim, although the contract, the Construction Committee of Gansu Province, but was August 5, 1999 revocation of the Dunhuang Hotel Project for the year 1995, the provincial superior level pilot project, therefore, not support this claim. provinces and four construction requirements of the Dunhuang Hotel bombarded with arrears to pay staff travel expenses of litigation claims, both the contract is not agreed, not support it. Dunhuang Hotel, built on the counterclaim requires provinces and four failure to design civil engineering construction and design requirements of construction projects around the redo rework the idea of cross-examination failed to cite the relevant direct evidence, the provinces and four built in cross-examination is provided in the request related to this counterclaim, from Dunhuang Hotel construction notice issued to change, change, construction meeting minutes, drawings and other evidence of design changes, so the counterclaim does not support the request. Dunhuang Hotel requires provinces and four built on the first floor rooms, refrigeration room, the kitchen sink wall, etc., tilt, cracks and other major quality problems to be completely excluded from the basis of counter-claim, according to its application, in order to identify the Dunhuang Hotel Project on the first floor of non-load bearing walls cause cracks in the wall and the responsibility of the parties concerned, the court shall delegate project in Gansu Province Quality Supervision Station of Dunhuang Hotel project quality were identified.
made based on expert opinion of the station and the views put forward by the parties and relevant evidence that: Dunhuang Hotel Project construction units put into use in the 15 months to place a non-bearing wall cracks in floor sink is not a party to the construction unit provinces and four due to construction. First, the design unit of the Northwest Design Institute designed the project in violation of the individual parts of the normative standards promulgated by the state, and the Gansu Provincial Construction Committee 1993 January 31 Gan Jian Fa (1992), No. 441, not given enough attention, such as the foundation beam should be designed first floor wall without design, build wall directly located in the backfill soil cushion ranging Bo Hou, buried pipes under the floor instead of setting the foundation trench leak , and thus not an effective solution to the foundation of the only accelerate the exposure of the problem: thus, the design quality of this unit should bear the major responsibility. construction units built in four provinces during the construction, backfill compaction factor does not meet the design requirements: from the purchase of individual tube drainage Bi with thin, in addition to the design of buried pipelines individual lots violation of standards, resulting in rupture with long, running water and other reasons, causing the foundation is not heavy, and wall cracks should be held directly responsible. the construction unit in violation of state on the Dunhuang Hotel normative standards, without taking any water under the measures, the planting around the building 6m lawn, flower beds, and using irrigation-type water, resulting in a large number of ground water into the body under the floor; the first floor, ground beam foundation is not designed to accelerate the ground subsidence, deterioration of the first floor wall cracks; quality problems can not shirk this responsibility. Geological Survey provides geological units exploration geological team reports although there are several data imperfections, and as the use of the exploration information design units, the survey report did not raise any objections, counter-claim of the plaintiff has not, so geological team works on the first floor of the Dunhuang Hotel, part of the wall cracks sink shall not be liable. The counterclaim requests under the relevant laws limitation provisions over, but given the province has approved four building, and identified by the relevant authorities, strengthening the rectification as soon as possible, according to the actual situation, the Northwest Institute, provinces and four built in Dunhuang Hotel, should be held accountable. Dunhuang Hotel requirements provinces and four guest rooms decorated on the quality and construction of two unfinished projects to complete the rectification of the counterclaim requests have been made by provinces and four built corrective maintenance, and related personnel to sign the Dunhuang Hotel experience in evidence, and in accordance with the provisions of both the contract and the law The quality of the project are over the warranty period; the same time without the Dunhuang Hotel in the engineering department of state functions that the case of acceptance into use, in violation of relevant laws and regulations. on two unfinished projects in the generator room, noise barriers are not construction, because originally agreed by the Dunhuang Hotel, responsible for the purchase construction materials and then notify the construction unit, but has not received the materials and the construction of the Repurchase Notice; hospital without making fountains blasting, because blasting the decision to change the Dunhuang Hotel, tiling, but What size and color of the stick tiles, the leadership of Dunhuang Hotel disagree construction unit has not received notice of these two construction projects are not built in the province of the trial court four of the unfinished project shall submit a 24,826 yuan Statement by the card refund. Dunhuang Hotel, neither refund accounts and give evidence to the contrary, has not raised objection to the work in progress shall be deducted from outstanding project. Dunhuang Hotel requires provinces and four less than the fine quality of the project construction compensation 9 million for breach of contract counterclaim requesting payment, because quality problems caused by the first floor wall is not the responsibility of building a party for the four provinces, it will not support the counter-claim; Dunhuang Hotel requires provinces and four built liquidated damages schedule delays 7,932,494 yuan counterclaims, because of its many design modifications, engineering models fail to timely disbursement of the contract, resulting in downtime, so that projects can not be completed on schedule, not responsible for the provinces and four construction; and the project has been put into use until the last three years, counterclaims has exceeded the statute of limitations law, the counterclaim does not support the request; Dunhuang Hotel requires provinces and four construction project quality compensation for losses due to 5,355,640 yuan of counterclaims, because do not provide the specific composition and losses related to legal evidence, and functions of the project without state inspection to put into use, according to provisions, the liability should be themselves, not to support the counterclaims; Dunhuang Hotel, ask for confirmation in October 1995 to 10 orders and signed with the provincial four-building, 80 million The two sides signed in May the spirit of the scope of the first contract, both sides agreed on a voluntary basis, shall be deemed valid, a request not to support this counterclaim: Dunhuang Hotel requires provinces and four construction payments for the works has exceeded the return 771,359 yuan and interest, 231,408 yuan, the warranty payment 1.550.815 dollars counterclaims, because no bank was built in Dunhuang City, China Branch of the accounts and signed and sealed by the three parties has given approval, and payment settlement project audit unit is commissioned their own hotel , and the counterclaim is untenable; Dunhuang Hotel, the audit requirements of provinces and four construction spending 682,995 yuan compensation counterclaim seeking clear, because the Dunhuang Hotel is not available to the Tribunal any notes audit fee expenditure, and the price of the project audit by the CCB approved, Dunhuang Hotel unilateral re-audit, in violation of both the relevant provisions of the contract, the audit costs should be themselves.
decision accordingly: First, the provinces and four building and the Dunhuang Hotel, signed by Terms the date of payment), the decision paid off within ten days of entry into force; three provinces and four built dismissed other claims; four works on the first floor of Dunhuang Hotel, cracks problem of non-load bearing walls, wall base should be added beam reinforcement , entered into force twenty days after the verdict, provinces and four built to do the preparatory work reinforcement and repair of construction, bear all the costs of 30% of the reinforcement; Dunhuang Hotel, before entering the construction team to do the preparatory work, to bear all costs of 30% reinforcement ; third reinforcement out rectification of the Northwest Institute design, bear all the costs of 40% of the reinforcement; five other counterclaims Dunhuang Hotel, and dismissed. case acceptance fee of 69,835 yuan by the provincial construction of affordable four-l3, 967 Yuan, Dunhuang large Hotel burden of 55,868 yuan; counterclaim charges 97,000 yuan, 19,400 yuan by the provincial four-building burden, the burden of Dunhuang Hotel, 77,600 yuan; appraisal fee 85,748.94 yuan, the burden of 34,299.58 yuan by the Northwest Institute, provinces and four building affordable 25,724.68 yuan, the burden of 25,724.68 Dunhuang Hotel element.
Dunhuang Hotel, and the Northwest Institute refused to accept the first instance verdict, this court on appeal. Dunhuang Hotel Appeal said: Dunhuang Hotel, Main Building, first floor, there wall deformation, cracking, ground subsidence and other serious quality problems is completely Four built in the province due to the construction: first instance courts to provide some expert engineering quality supervision station in Gansu Province and the provinces and four co-construction building belongs to the Committee of Gansu Province, Dunhuang Hotel project is by its re-inspection, recommendation, was only as a provincial high-quality projects, with a direct stake in this case, the request for project quality: problems and responsibilities re-commissioned the China Quality Inspection Center to identify the child; First Instance Court of major quality problems in engineering the most important reason to avoid direct, according to Quality Supervision Station of Gansu Province's Wrong Result of shared responsibility by the parties, contrary to the facts and the law: According to the audit firm's audit of Gansu Province, the report proved that the bank's project payment settlement against the objective facts, is false, the request to re-commissioned relevant and truly settled in: the lack of verdict enforceability of the fourth dispositif.
Northwest Institute of Appeal, said: Quality Supervision Station of Gansu Province and has a direct stake in this case, the identification of false information; Dunhuang large Hotel quality is the real reason for the accident four provincial construction quality of building design requirements, and use the result of substandard products, has nothing to do with the design, the design department responsible for the verdict and sentence identification was wrong; first instance verdict for error of law , as found in Dunhuang Hotel counterclaims request has exceeded the limitation of action, but also built based on recognition of four provinces, by the relevant parties to take responsibility, not only contradictory, but is not recognized by provinces and four building that also recognized the Northwest Institute; Dunhuang Hotel project is put into use without the acceptance, in accordance with relevant laws and regulations, found that quality problems, the responsibility borne by the Dunhuang Hotel; Dunhuang Hotel, and the Northwest Institute commissioned to design the contractual relationship between, should be designed in accordance with the contract. < br> provinces and four construction claims that: the provinces and four built based on reasonable and lawful settlement of the Dunhuang Hotel is justified to ask for projects; Construction Committee of Gansu Province, Gansu Province, Project Quality Supervision Station and the construction of four different government departments are sub- , the functions of institutions and enterprises, there is no affiliation; under the Provincial Engineering Quality Supervision Station commissioned under the law courts of first instance, the organization of the construction industry in Gansu experts, academics, engineering authority, in accordance with design specifications and building regulations, through field testing, analysis and appraisal of the scientific conclusions reached after; Dunhuang Hotel requires provinces and four built gambling loss compensation 22,613,105 yuan's appeal is not factual and legal basis; provinces and four pair built their own expert conclusions in the recognition and responsibility of the Dunhuang Hotel, and v. limitation of action is different than the request; request to maintain verdict .
Court that: provinces and four building and the Dunhuang Hotel, signed four contracts (agreements) are both true intention, not against the law, should be considered valid; Dunhuang Hotel advocated both in the October 10, 1995 The agreement signed is invalid, there is no basis. Under the May 8, 1993 signed the Hotel construction and installation cost of the settlement made by both sides to the contract, should be considered valid; Dunhuang Hotel, and the contract should be signed by both parties recognized the project to pay outstanding payments in the amount of 5,776,479.60 dollars and interest; Dunhuang Hotel Gansu entrusted with their own unilateral Provincial Audit Office audit report, based on the bank's project payment claims settlement is false, there is insufficient evidence to re-commissioned the two sides settled the breach of contract requests, not support it. provinces and four construction projects will be delivered after the Dunhuang Hotel, Dunhuang Hotel acceptance of the application should fulfill its obligations, but because it does not pay the associated costs, resulting in projects can not acceptance, which should bear full responsibility for the Dunhuang Hotel. Since the Dunhuang Hotel, a framework structure, the current quality problems is limited to a House, which Dunhuang Hotel, provinces and four building, Northwest Design Institute are to be recognized. Dunhuang Hotel requests provinces and four building, Northwest Design Institute, compensation for a serious project geological team, especially the quality of non-load bearing walls on the first floor housekeeping problems caused by crack The losses, due to the Dunhuang Hotel project is put into use without the acceptance date, the Ordinance, Fang Dunhuang Hotel, bear the responsibility. But in view of Gansu Province, four-building project for the identification of the conclusions of Quality Supervision part of the responsibility of their own to be recognized, and for the first trial of its commitment to the first floor of the Dunhuang Hotel
works of non-load bearing walls Cracks were not reinforced 30% of the cost of the appeal may be allowed provinces and four built the first floor of the Dunhuang Hotel, bear the cost of rectification work. Dunhuang Hotel, the first instance to provinces and four built for the defendant, Northwest Design Institute, the geological team for the first filed three counterclaims, and the Northwest Institute for its geological team is another legal relationship, the Northwest Institute, geological team claims counterclaims beyond the scope of the present case, the court of first instance will be tried as a counterclaim improper, Dunhuang commissioned to design the hotel can be based on contract and commission a separate contract for exploration in the Northwest Design Institute, the geological team suit.
Accordingly, according to construction and installation contracting regulations, : A maintenance of Gansu Province Higher People's Court (1998) Gan Min Chu Zi No. 22 civil judgments first, second, third, fifth; change in Gansu Province Higher People's Court (1998), Zi Qing Gan 22, the fourth civil judgments as follows: the first floor of the Dunhuang Hotel, bear the rectification of non-load bearing walls reinforced cracks, provinces and four bear the costs of construction 30%; first instance court costs 69,835 yuan by the Dunhuang Hotel, commitment, counterclaim charges 97,000 million commitment from the Dunhuang Hotel, 67,900 yuan, 29,100 yuan provinces and four building commitment, appraisal fees 85,748.94 yuan, from the Dunhuang Hotel, and the provinces and four construction element of the commitment to 42,874.47; second instance the case acceptance fee of 165,935 yuan from the Dunhuang Hotel commitment. This decision is final decision.
this decision is final.
the presiding judge in the judge Xiao Bai
judge Liu Zhumei
Song Chunyu Zhang Zhang