|
|
|
No. 9 of 10 Model Cases on Administrative Agreements Issued by the Supreme People's Court (Batch 1): Lingshi Company and Zhenghe Company v. the People's Government of Guoyang County, Anhui Province, the People's Government of Mengcheng County, Anhui Province, and the People's Government of Lixin County, Anhui Province (case of requesting conclusion of an administrative agreement on franchising)
|
|
最高人民法院发布10起行政协议典型案例（第一批）之九：灵石公司、正和公司诉安徽省涡阳县人民政府、安徽省蒙城县人民政府、安徽省利辛县人民政府请求订立特许经营行政协议案
|
|
【法宝引证码】
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| No. 9 of 10 Model Cases on Administrative Agreements Issued by the Supreme People's Court (Batch 1): Lingshi Company and Zhenghe Company v. the People's Government of Guoyang County, Anhui Province, the People's Government of Mengcheng County, Anhui Province, and the People's Government of Lixin County, Anhui Province (case of requesting conclusion of an administrative agreement on franchising) | | 最高人民法院发布10起行政协议典型案例（第一批）之九：灵石公司、正和公司诉安徽省涡阳县人民政府、安徽省蒙城县人民政府、安徽省利辛县人民政府请求订立特许经营行政协议案 |
| 1. Basic Facts | | 基本案情 |
| On September 1, 2011, the People's Government of Guoyang County, Anhui Province (hereinafter referred to as the “Guoyang County Government”) entered into the Agreement on Franchise Operation of Urban Domestic Waste Incineration Power Generation Processing with Beijing Zhenghe Qingyang Investment Co., Ltd. (hereinafter referred to as “Zhenghe Company”) through investment promotion. Later, as the agreement violated the mandatory legal provisions on public bidding for franchise operation projects of municipal public utilities, as investigated and dealt with by the inspection and supervision department, the agreement was terminated. In December 2012, entrusted by the People's Government of Mengcheng County, Anhui Province and the People's Government of Lixin County, Anhui Province, the Guoyang County Government conducted a joint bidding for the waste incineration power generation BOT project in three counties. The bidding documents stipulated that “the bid winner should pay 121,135,500 yuan to Zhenghe Company.” This amount of funds was the expenses incurred when the Guoyang County Government and Zhenghe Company terminated the aforesaid agreement. Due to the high expenses, other bidders abandoned bids, and because the number of bidders did not reach three, the bidding invitation in dispute was transferred to single-source procurement. The consortium formed by Shanxi Lingshi Zhenghe Industrial Co., Ltd. (hereinafter referred to as “Lingshi Company”) and Zhenghe Company won the bid. On October 8, 2013, Guoxin Tendering Company issued a contract notice to the consortium. In the process of concluding a contract, the two parties disagree on the change in a part of the contract and blame each other for delay in signing the contract due to reasons attributable to the other party. On July 5, 2017, the Guoyang County Government issued a letter on the termination of the project. Lingshi Company and Zhenghe Company instituted a litigation, requesting the court to order the governments of the three counties to continue to enter into an administrative agreement with the two companies, and the governments of the three counties to pay liquidated damages of 67.05 million yuan and initial expenses of 121,135,500 yuan, refund the performance bond of 1 million yuan, and assume the interest losses. | | 2011年9月1日，安徽省涡阳县人民政府（以下简称涡阳县政府）通过招商方式，与北京正和晴阳投资有限公司（以下简称正和公司）订立《城市生活垃圾焚烧发电处理特许经营协议》。后因该协议违反市政公用事业特许经营项目应当公开招标的法律强制性规定，经纪检监察部门查处，该协议终止。2012年12月，受安徽省蒙城县人民政府、安徽省利辛县人民政府委托，涡阳县政府对三县垃圾焚烧发电BOT项目进行联合招标，招标文件规定“中标人需支付正和公司12,113.55万元”，该笔款项系涡阳县政府与正和公司终止上述协议产生的费用。因该笔费用较大，导致其他投标人弃标，又因竞标人没有达到三家，案涉招标转入单一来源采购，山西灵石正和实业有限公司（以下简称灵石公司）与正和公司组成的联合体中标。2013年10月8日，国信招标公司向联合体发出签约通知书。在合同订立过程中，双方就合同部分内容的变更发生分歧，互相指责系对方原因导致迟迟不能签约。2017年7月5日，涡阳县政府作出关于项目终止的函。灵石公司、正和公司遂起诉，请求判令三县政府继续与两公司订立行政协议，三县政府赔偿违约金6,705万元及前期费用12,113.55万元、退还保证金100万元并承担利息损失。 |
| 2. Adjudication | | 裁判结果 |
| The Intermediate People's Court of Bozhou City, Anhui Province held in the original trial that the two companies requested to pay Zhenghe Company's initial expenses of 121,135,500 yuan, which did not fall in the scope of the trial of this case and could be resolved in another case. As the contract was not concluded and the two parties did not agree on liquidated damages, the two companies requested for payment of liquidated damages of 67.05 million yuan, which was not supported. 1 million yuan of performance bond paid by the two companies should be refunded. It therefore rendered the judgment that: the Guoyang County Government should refund 1 million yuan of deposit paid by Zhenghe Company and other claims of the two companies should be rejected. Both parties refused to accept it and filed an appeal. | | 安徽省亳州市中级人民法院一审认为，两公司要求支付正和公司前期费用12,113.55万元，不属于本案审理范围，可另案解决。因合同未成立，且双方并未就违约金进行约定，两公司要求支付违约金6,705万元，不予支持。两公司所缴纳的100万元保证金应予退还。遂判决：涡阳县政府返还正和公司所缴纳的保证金100万元，驳回两公司的其他诉讼请求。双方当事人均不服，提起上诉。 |
| ．．．．．． | | ．．．．．． |
Dear visitor,you are attempting to view a subscription-based section of lawinfochina.com. If you are already a subscriber, please login to enjoy access to our databases . If you are not a subscriber, please subscribe . Should you have any questions, please contact us at:
+86 (10) 8268-9699 or +86 (10) 8266-8266 (ext. 153)
Mobile: +86 133-1157-0713
Fax: +86 (10) 8266-8268
database@chinalawinfo.com
| |
您好：您现在要进入的是北大法律英文网会员专区，如您是我们英文用户可直接 登录，进入会员专区查询您所需要的信息；如您还不是我们 的英文用户，请注册并交纳相应费用成为我们的英文会员 。如有问题请来电咨询；
Tel: +86 (10) 82689699, +86 (10) 82668266 ext. 153
Mobile: +86 13311570713
Fax: +86 (10) 82668268
E-mail: database@chinalawinfo.com
|
| | | | | | | | |
|
|
|
|
|
|
|
Message: Please kindly comment on the present translation.
|
|
|
|
|
|
|
|
|
Translations are by lawinfochina.com, and we retain exclusive copyright over content
found on our website except for content we publish as authorized by respective copyright
owners or content that is publicly available from government sources.
Due to differences in language, legal systems, and culture, English translations
of Chinese law are for reference purposes only. Please use the official Chinese-language
versions as the final authority. lawinfochina.com and its staff will not be directly
or indirectly liable for use of materials found on this website.
We welcome your comments and suggestions, which assist us in continuing to improve
the quality of our materials.
|
|
| |
|
|