专业团队

[裁判摘要]：

　　在建设工程合同中，原告的工程款所用资金系国债资金，应当依法进行审计。该审计决定对原告有约束力，对被告虽没有约束力，但有民商事上的证据效力。当审计机关的审计决定经司法鉴定后，不仅具有民商事证据效力，还具有程序效力，其效力亦大于双方认可并已实际履行的《工程结算造价审计的报告》的证据效力。被告所多获工程款应依法予以返还。

[案情]：

　　原告：宜昌市夷陵区环境污染防治项目管理中心

　　被告：宜昌市宜星市政建设公司

　　原告宜昌市夷陵区环境污染防治项目管理中心(以下简称环境项目中心)因与被告宜昌市宜星市政建设公司(以下简称宜星市政公司)建设工程合同纠纷一案，向湖北省宜昌市夷陵区人民法院提起诉讼。

　　原告诉称：2002年4月26日，原、被告双方签订《建设工程施工合同》，约定由原告将三峡坝区生活垃圾卫生填埋场进场道路工程发包给被告施工，总价款为人民币1，669，600元。合同签订后，被告组织人员进场施工。2002年12月28日，该工程项目竣工验收。由于进场道路实际开挖土石方等工程量与原设计变更较大，在原合同为固定总价款合同的基础上，原、被告及监理同意据实结算，工程量以实际发生的数量为准。由于被告宜星市政公司承接原告发包的建设工程后没严格按图施工，实际施工与项目标准存在明显减少，被告所报结算隐瞒实情，2003年8月8日虽经武汉众华工程造价咨询有限责任公司(以下简称武汉众华咨询公司)对工程造价进行工程结算审计，但在没有到实地查验的情况下，就确认被告施工工程价款为1，625，910.70元，双方并依此办理了决算。导致原告累计向被告支付工程款1，557，945.50元。后经夷陵区审计局审核，认定被告实际完成工程价款1，498，930.88元。原告认为被告多获工程款依法无据，损害了国家利益，故被告应返还原告多付的工程款59014.62元。

　　被告宜星市政公司辩称：原告仅根据夷陵区审计局审计决定书，核减被告工程款128331.87元，其证据不足。因原告与被告所签定的《建筑工程施工合同》依法成立，真实、合法、有效，双方业已履行，理应受法律保护。在结算过程中，经双方协商，监理方同意，聘请了有审计资格的相关部门对工程进行了审计，三方也予以认可，并进行了结算。现原告以夷陵区审计局对该工程的审计报告，核减被告的工程造价，不具备法律效力，实属不妥。故原告据此要求被告返还工程款，所依据的证据不足，请求法院依法驳回原告的诉讼请求。

[Summary of Judgments]:

In the construction project contract, the plaintiff's project funds are treasury bond funds, which should be audited according to law. The audit decision is binding on the plaintiff, and although it is not binding on the defendant, it has evidential effect in civil and commercial matters. After judicial appraisal, the audit decision of the auditing agency not only has the effect of civil and commercial evidence, but also has procedural effect, and its effect is greater than the evidence effect of the "Report on Engineering Settlement Cost Audit" recognized and actually performed by both parties. The defendant shall return the excess engineering funds obtained in accordance with the law.

[Case]:

Plaintiff: Environmental Pollution Prevention and Control Project Management Center of Yiling District, Yichang City

Defendant: Yichang Yixing Municipal Construction Company

The plaintiff, the Environmental Pollution Prevention and Control Project Management Center of Yiling District, Yichang City (hereinafter referred to as the Environmental Project Center), has filed a lawsuit with the People's Court of Yiling District, Yichang City, Hubei Province over a construction project contract dispute with the defendant, Yixing Municipal Construction Company (hereinafter referred to as Yixing Municipal Construction Company).

The plaintiff claims that on April 26, 2002, both the plaintiff and the defendant signed a "Construction Project Construction Contract", which stipulated that the plaintiff would contract the construction of the access road project for the Three Gorges Dam's domestic waste sanitary landfill site to the defendant for a total price of RMB 1669600. After the contract was signed, the defendant organized personnel to enter the site for construction. On December 28, 2002, the project was completed and accepted. Due to significant changes in the actual excavation of earthwork and other works on the access road compared to the original design, on the basis of the fixed total price contract in the original contract, the plaintiff, defendant, and supervisor agreed to settle the settlement based on the actual amount of work. Due to the defendant Yixing Municipal Company not strictly following the construction drawings after undertaking the construction project contracted by the plaintiff, there was a significant decrease in actual construction and project standards. The defendant's settlement report concealed the truth. Although Wuhan Zhonghua Engineering Cost Consulting Co., Ltd. (hereinafter referred to as Wuhan Zhonghua Consulting Company) conducted an engineering settlement audit on the engineering cost on August 8, 2003, without on-site inspection, It was confirmed that the defendant's construction project price was 1625910.70 yuan, and both parties processed the final settlement accordingly. Resulting in the plaintiff paying a total of 1557945.50 yuan in project fees to the defendant. After being reviewed by the Audit Bureau of Yiling District, it was determined that the defendant actually completed the project price of 1498930.88 yuan. The plaintiff believes that the defendant's overpayment of project funds is legally unfounded and harms national interests, therefore the defendant should refund the plaintiff the overpaid project funds of 59014.62 yuan.

The defendant Yixing Municipal Company argues that the plaintiff only deducted the defendant's engineering payment of 128331.87 yuan based on the audit decision of the Yiling District Audit Bureau, and the evidence is insufficient. Due to the fact that the Construction Contract signed between the plaintiff and the defendant is legally established, true, legal, and valid, and has been fulfilled by both parties, it should be protected by law. During the settlement process, after consultation between both parties and agreement from the supervising party, a qualified department was hired to conduct an audit of the project, which was also recognized by the three parties and settled. The plaintiff's use of the audit report of the Yiling District Audit Bureau to reduce the defendant's engineering cost is not legally effective and is inappropriate. Therefore, the plaintiff requests the defendant to return the project payment based on insufficient evidence, and requests the court to dismiss the plaintiff's lawsuit request in accordance with the law.