The court of second instance held that I.
Modern civil law or jurisprudence generally establish the principle of change of circumstances to correct the unfair contracts.
Although the official seal of the agreement was Shenyang highway equipment company, the project in this case was contracted by Shenyang highway company, Shenyang highway equipment company, as a subsidiary of Shenyang highway company, affixing the official seal on the agreement shall be regarded as the entrustment of Shenyang highway company.
Article 4 of the general principles of civil law stipulates that “civil activities shall follow the principles of voluntariness, fairness, compensation for equal value and good faith” [the provisions of this article are inherited from articles 4-7 of the civil code], Article 26 of the interpretation of the Supreme People’s Court on Several Issues concerning the application of the contract law of the people’s Republic of China (II) stipulates that [the provisions of this article are inherited by article 533 of the civil code], after the establishment of the contract, major changes that are not commercial risks caused by force majeure and unforeseen by the parties at the time of conclusion of the contract have taken place, If the continued performance of the contract is obviously unfair to one party or fails to achieve the purpose of the contract, and the party requests the people’s court to change it, the people’s court shall change it in accordance with the principle of fairness.
No matter what abnormal changes occur in the transaction environment, they should not affect the effectiveness of the contract.
As for the sharp rise in the price of diesel oil during sun Jianfa’s construction, the two parties have not agreed on how to deal with the situation.
Subsequently, sun Jianfa applied for appraisal again, provided 18 volumes of construction records and other evidence prepared by Shenyang highway company, and re appraised the contents of sun Jianfa’s application.
On July 25, 2005, sun Jianfa signed the highway (construction) project contracting construction agreement with Shenyang highway equipment company, which agreed that sun Jianfa would undertake the highway project of contract section B5 (subgrade team 5) of Xinyang expressway.
4、 The court of first instance found that before the signing of the agreement, Shenyang highway company and Xinyang Expressway Construction Investment Co., Ltd.
After entering modern society, large-scale emergencies such as the financial crisis have caused severe turbulence in the social and economic situation for several times.
When the party signed the contract, it could not foresee the huge rise of diesel oil price, so that the calculation method of calculating the project payment according to the diesel price in 2005 was obviously unfair, Therefore, the calculation of the project price in the first instance judgment takes into account the rise of oil price, which is in line with the provisions of the law.
Shenyang highway company shall pay sun Jianfa the unpaid project payment of 3906230.07 yuan and interest within 10 days from the effective date of the judgment; 2、 Reject sun Jianfa’s other claims.
If the construction contract of the construction project is invalid, but the construction project has passed the completion acceptance, and the contractor requests to pay the project price according to the contract, it shall be supported.
Both parties have no objection to the works within the contract, and shall be priced with reference to the quantities and prices agreed in the contract.
Sun Jianfa’s request for Shenyang highway equipment company to bear the responsibility of paying the project payment was not supported.
In this case, the price of diesel oil was 550 yuan per ton when the party signed the contract in July 2005 and rose to 1250 yuan per ton by the end of construction in August 2007.
signed the construction contract of contract section B5 of Xinyang expressway.
to appraise the disputed project and issued an appraisal opinion.
The judgment of the first instance is not improper for the project within the contract recognized by both parties to calculate the project payment with reference to the unit price agreed in the contract..
The principle of change of circumstances is a restriction on the freedom of contract based on the principles of fairness and good faith.
The change of situation of practical problems refers to the abnormal change of the objective situation as the basis or environment of the transaction due to reasons not attributable to both parties after the establishment and effectiveness of the contract.
The legal consequence of the change of circumstances is to allow the disadvantaged party to request the change or termination of the contract.
Since last year, the price of building materials has increased to varying degrees.
Reasons for court decision 1 The court of first instance held that sun Jianfa and Shenyang highway equipment company signed the highway (construction) project contracting construction agreement.
Summary of case 1.
The determination of the charging standard of the project price in this case.
It is obviously unfair to continue to perform the debt in accordance with the contract.
Therefore, the parties to the agreement in this case should be sun Jianfa and Shenyang highway company.
Since both parties cannot reach an agreement on the specific quantities, the project funds have not been settled.
Shenyang highway company refused to recognize the appraisal opinion on the ground that the appraisal evidence was provided by sun Jianfa unilaterally.
Many fair contracts have lost their fairness due to currency devaluation, soaring prices and other reasons.
It is unfair to consider that the price of the rising part should be borne by sun Jianfa.
As for whether the rise of material price is force majeure or change of circumstances, the parties to the contract have fierce arguments and arguments, and can not reach an agreement, they can only resort to judicial channels.
2、 The project was completed and opened to traffic on December 19, 2007 due to many changes made by the proponent and heavy rain.
Therefore, the calculation of the project funds for several construction contents in this part should be based on or refer to the unit price in the contract list and consider the oil price, and the other construction contents have no basis, It shall be calculated according to the appraisal amount.
Among the cases being handled by the team, five cases of construction disputes involve problems such as material difference adjustment.
Next, through a typical case of the Supreme People’s court and several similar cases, let’s see how the court judges the relevant facts and reasons in judicial practice.
3、 On October 27, 2012, upon the application of sun Jianfa, the court of first instance entrusted Zhumadian Zhengtai Engineering Management Co., Ltd.
Judgment of the court of first instance: 1.
The traditional civil law pursues the principle of “contract must be strictly observed”, which holds that after the parties conclude the contract, they should bear the transaction risk themselves.
2.
Both parties appealed against it.
Shenyang highway equipment company is not the contractor, and Shenyang highway equipment company belongs to the subsidiary of Shenyang highway company.
