Article 286 of the contract law of the people’s Republic of China: “if the employer fails to pay the price in accordance with the contract, the contractor may pay the price within a reasonable period after urging
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If the employer fails to pay within the time limit, the contractor may negotiate with the employer to discount the project or apply to the people’s court to auction the project in accordance with the law, except that it is not suitable to discount or auction the project according to the nature of the construction project
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The price of a construction project shall be paid in priority from the price converted or auctioned by the project
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” It is generally believed that this article establishes the system of priority of compensation for construction project price in China
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Article 807 of the civil code of the people’s Republic of China completely retains the whole content of this article
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Through the enrichment of individual cases, the system of priority of compensation for construction project price has been constantly refined and constructed
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However, in practice, there is still a big controversy about the system of the priority of compensation for the construction project price, especially the priority of compensation for the actual construction project price
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In this paper, the author will try to study some hot issues in the field of the priority of compensation for the construction project price of the actual constructor
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1、 The concept of actual constructor before discussing whether the actual constructor has the priority of compensation, let’s discuss what is the actual constructor
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The actual construction person is not a legal concept
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When the Supreme People’s court formulated Article 26 of the interpretation on the application of law in the trial of disputes over construction contracts of construction projects in 2004, it proposed the title of specific person
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In the judicial interpretation of the Supreme People’s Court on construction contract (2) understanding and application, the definition of the actual construction person is: “the actual construction person refers to the construction unit and individual who carry out the construction after the construction contract is invalid, generally refers to the sub contractor, the illegal sub contractor, the affiliated contractor and the contractor without construction qualification And so on
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The actual constructor does not include the performance assistant of the contractor, the legal contractor of professional subcontracting project and the labor operation contractor
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” (see page 369) the book clarifies the concept of the actual constructor from both positive and negative aspects
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According to this definition, we can know that the actual constructor refers to the subcontractor, illegal subcontractor and affiliated person
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2、 The first point of view: the actual construction person does not enjoy the priority of compensation for the construction project price
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Article 35 of the interpretation of the Supreme People’s Court on the application of law in the trial of disputes over construction projects (1) promulgated by the Supreme People’s Court on December 29, 2020 and officially implemented on January 1, 2021: “a contractor who has entered into a construction contract with an employer for a construction project shall, in accordance with the provisions of article 807 of the civil code, request the price of the construction project to be converted or auctioned The people’s court shall support the priority of the price
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” The judicial interpretation of this article is inherited by Article 17 of the Supreme People’s court’s interpretation on the application of law in the trial of construction dispute cases (II), which was published by the Supreme People’s Court on December 29, 2018 and takes effect on February 1, 2019
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According to the article, the subject who has the priority of compensation for the construction project price is the contractor who has signed the construction contract with the employer
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The actual constructor seems to be excluded from the application of priority
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In the judicial interpretation of the Supreme People’s Court on construction contract (2) understanding and application, it directly expresses such a view: “according to the judicial interpretation of this article, the person who enjoys the priority of compensation for the project price according to law must have a direct construction contract relationship with the employer, and the surveyor, designer, subcontractor, actual constructor, supervisor and the contractor of the construction project must have a direct construction contract relationship with the employer In this book, the Supreme Court reasoned why the actual construction contractor does not have the priority of the construction project price
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The main reasons are as follows: 1 It gives the actual constructors the right to claim the project price from the employer, but the actual constructors should not claim the priority of compensation for the project price directly from the employer
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2
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It is difficult to realize the priority of compensation if the actual constructor is given the priority
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Because, in many cases, the scope of construction of the actual construction is limited, the project price is also limited, and it is not enough to obtain the status of construction project discount or auction
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It is also unfair to the employer if the construction contractor is allowed to enjoy the priority of compensation for the project discount or auction income when the actual construction quantity is very small
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3
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In the case of affiliation, although the affiliation person may actually complete the construction of the project, there is no direct contractual relationship between the affiliation person and the employer
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If the actual construction person is allowed to claim the priority of compensation for the project price from the employer, it is in fact a disguised form to encourage affiliation, which is not conducive to the qualification management of construction enterprises by the competent department of construction
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The summary of 2011 national civil trial conference also holds the same view
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Article 29 of the summary stipulates that “if the construction project contract is invalid due to illegal subcontracting, subcontracting, etc., the actual construction contractor’s request to exercise the priority of compensation for the construction project according to Article 286 of the contract law will not be supported.” 3、 The second point of view is that the actual constructor can claim the priority of compensation for the construction project price
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The following will be analyzed according to different types of actual constructors
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1
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If the employer knows that the affiliated party is affiliated with the affiliated party to complete the construction, the affiliated party can enjoy the priority of compensation
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According to Article 146 of the civil code of the people’s Republic of China, “the civil legal act performed by the actor and the counterpart with false intention is invalid
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The validity of a civil juristic act concealed by false expression of will shall be dealt with in accordance with relevant laws
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” When the employer signs the construction contract knowing that the affiliated party is affiliated with the affiliated party, it should be considered that the construction contract signed by the employer and the affiliated party is actually a false expression of the will of both parties, and the hidden civil legal act between the employer and the affiliated party, that is, the act of actually completing the construction by the affiliated party, is the real expression of the will between the two parties
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Therefore, it should be considered that the construction contract is actually established between the employer and the affiliated person, that is, the affiliated person is the contractor who really signs the construction contract with the employer
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Therefore, in this case, the affiliated person should enjoy the priority of compensation for the construction project price
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The Supreme Court has also changed its view on whether the affiliated person has the priority of compensation for the construction project price
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In the understanding and application of the contract part of the civil code of the people’s Republic of China (3) edited by the leading group for the implementation of the civil code of the Supreme People’s court, this issue is expressed as follows: “when dealing with the relationship among the construction enterprises, the units or individuals with the borrowed qualifications, and the employer, Article 146 of the civil code should be taken into account to solve the problem Each party shall determine its legal relationship on the basis of its true intention
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” (see page 2037) 2
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In the case of subcontracting or illegal subcontracting, the actual constructor can claim the priority of compensation for the construction project price by exercising the right of subrogation
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Article 44 of the interpretation of the Supreme People’s Court on the application of law in the trial of disputes over construction contracts of construction projects (I): “the actual constructor, in accordance with Article 535 of the civil code, brings a suit of subrogation because the subcontractor or illegal subcontractor is negligent in exercising the due creditor’s rights or subordinate rights related to the creditor’s rights to the employer, affecting the realization of the due creditor’s rights The people’s court shall support it
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” The judicial interpretation of this article is inherited from Article 25 of judicial interpretation of construction contract of the Supreme People’s Court (2).
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