The facts were clear, the evidence was sufficient, and both parties had no objection to this during the retrial, which was confirmed by the court according to law.
On October 15, 2019, the court of first instance filed a case to accept the case.
1、 Whether the claim of the construction engineering company for payment can be established first of all, from the perspective of the claim of the construction engineering company, this case is a construction contract dispute.
On January 29, 2016, China Construction Engineering Corporation declared a claim of 55470547 yuan to the bankruptcy and reorganization administrator of Tongyao Company.
The agreement of project settlement payment shall be 95% of the total settlement price before January 31, 2015 from the date of project settlement and report data release, and Party A shall bear the annual interest of the remaining project payment from the completion of settlement to the date of payment.” The agreement of “from the date of project settlement and report data release” is the grace of the corresponding payment time, not the condition of payment of project payment, That is, this agreement is a reasonable period left for Tongyao Company to verify the project price after the meeting, but the reasonable period shall not exceed January 31, 2015 at the latest.
Case summary THECASE1.
3.
Finally, the second paragraph of Article 46 of the Enterprise Bankruptcy Law stipulates that “the interest of claims with interest shall be stopped from the time of acceptance of the bankruptcy application.” In this case, the project receivables of the construction engineering company are the claims that the construction engineering company has declared and listed in the Restructuring Plan during the bankruptcy reorganization of Tongyao Company.
2、 Should it be confirmed that the construction engineering company has the priority to be compensated for the project funds involved in the case? First, the exercise period of the priority to be compensated for the project funds involved in the case.
In this case, the construction engineering company sued on October 8, 2018, the court of first instance made a judgment of first instance on June 18, 2020, and the court of second instance made a judgment of second instance on December 29, 2020.
REASON: The Supreme Court of REASON held that the focus of the dispute in this case was: 1.
On April 8, 2018, the Wulong Court approved the restructuring plan of Tongyao Company.
1、 In the second instance, the provisions of Article 22 of the Judicial Interpretation II of Construction Engineering that “the time limit for the contractor to exercise the priority of compensation for the construction project price is six months, starting from the date when the contractor should pay the construction project price” are applied, and the time limit for the exercise of the priority of compensation for the project price involved in the case is six months, which is not improper.
On July 22, 2016, the construction engineering company sent a letter to the bankruptcy and reorganization administrator, requesting to confirm that it had the priority to be paid for the project price involved in the case.
Secondly, about the starting point of the exercise period of the priority right to compensation of the project funds involved in the case.
On October 22, 2018, the bankruptcy administrator of Tongyao Company issued the Notice of Objection Reexamination to the Construction Engineering Company, believing that the Construction Engineering Company did not have the priority to be paid for the project price involved.
Whether the claim of the construction engineering company for payment could be established; 2、 Whether it should be confirmed that the construction engineering company has the priority to be compensated for the project funds involved in the case.
5.
The claim of the construction engineering company that Tongyao Company should pay the project payment interest from October 14, 2019 is not in conformity with the law, and the court will not support it.
Before May 27, 2014, the construction engineering company delivered the project involved to Tongyao Company for use.
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On October 9, 2012, the Construction Engineering Company (Party B) and Tongyao Company (Party A) signed the Construction Contract for the Phase I Project of Chongqing Tongyao Casting and Forging Co., Ltd.
Article 26, paragraph 2, of the Judicial Interpretation II of Construction Engineering (implemented on February 1, 2019) stipulates: “This interpretation shall apply to the cases of first and second instance that have not been concluded after the implementation of this interpretation”.
On July 25, 2014, the construction engineering company submitted the project settlement statement to Tongyao Company, which stated that the project cost was 84519966.79 yuan.
And as described below, even if the Judicial Interpretation I of China Construction Engineering Corporation is applicable to this case, the exercise period of China Construction Engineering Corporation has exceeded the 18 months specified in the interpretation.
Secondly, in the first and second trials, the receivable project funds of the construction engineering company were determined to be 26869186.15 yuan (including progress payment, settlement payment and returned quality deposit), the interest of progress payment was 1.54 million yuan, and the interest of settlement payment was 920229.2 yuan.
The People’s Court of Wulong District accepted the bankruptcy reorganization application of Tongyao Company on September 24, 2015, so the interest of the project receivables shall be stopped from September 24, 2015.
China Construction Engineering Corporation advocates the application of the Judicial Interpretation I of China Construction Engineering Corporation (implemented on January 1, 2021), and accordingly determines that the exercise period of its priority right to compensation is 18 months, which is not supported by the court.
Therefore, it is sufficient to determine that January 31, 2015 is the time for the project payment payable expressly agreed by both parties, that is, the starting point for the exercise of the priority right of compensation of the project payment involved in the case, which is not based on the settlement of the project payment..
The construction engineering company’s retrial request to maintain the first trial decision is not supported by the court.
Railway, Automobile Vehicles and Clean and Efficient Energy Equipment Casting and Forging Manufacturing Project (hereinafter referred to as the “Construction Contract”), agreeing that Tongyao Company will deliver the Phase I Project of Chongqing Tongyao Cast Steel Project to the Construction Engineering Company for construction, and complete it on December 30, 2013.
On September 24, 2015, Tongyao Company was ruled to enter into bankruptcy and reorganization by the Wulong Court.
2.
However, according to the facts that have been found out, the claim in this case is the claim that the construction engineering company has declared during the bankruptcy and reorganization of Tongyao Company, and has been listed in the Restructuring Plan, but the amount and nature of the claim need to be finally confirmed.
Article 16 of the Enterprise Bankruptcy Law stipulates: “After the people’s court accepts the bankruptcy application, the debtor’s debt repayment to individual creditors is invalid.” The first trial order that Tongyao Company pay the debt to the construction engineering company is obviously inappropriate, and the second trial has corrected the error according to law.
4.
The Minutes of the Meeting on August 27, 2014 stated: “IV.
On October 8, 2018, the construction engineering company filed a lawsuit to the Wulong court.
Therefore, this case should be an ordinary bankruptcy claim confirmation lawsuit.
