[key points of judgment] the actual constructor refers to the construction subject who actually completes the project construction in the construction contract which is invalid according to the law, including the sub contractor, the illegal sub contractor, etc
.
If the parties claim the rights as the actual constructors, they shall prove the facts of the funds, equipment, materials and labor actually invested in the project
.
[brief introduction to the case] in March 2017, the land center contracted the project to the qualified Yuanrun company, and Yuanrun company subcontracted the whole project to Wang Zhaoxiang, Wang Zhaoxiang subcontracted the whole project to Qin Qinglei, and Qin Qinglei subcontracted it to Liu Qihua and longhui
.
After the completion of the project, Liu Qihua and longhui sued the land center and Qin Qinglei
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According to the law, the court ruled that Qin Qinglei paid the project funds, and the land center paid the project funds within the scope of the unpaid project funds
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Subsequently, Wang Zhaoxiang sued the land center to pay the project funds
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[judgment result] the first instance rejected all the claims, and the second instance maintained [judgment reason] the actual construction contractor refers to the construction subject in the construction contract which is invalid according to the law, including the sub contractor, the illegal sub contractor, etc
.
If the parties claim the rights as the actual constructors, they shall prove the facts of the funds, equipment, materials and labor actually invested in the project
.
Wang Zhaoxiang did not submit effective evidence to confirm the fact that he actually invested funds, equipment, materials, labor and other relevant facts in the project, and could not prove that he was the actual constructor of the project involved
.
[relevant judgment] the Supreme People’s court held that “actual constructor” refers to the contractor, sub contractor, qualified constructor or affiliated constructor of the illegal professional engineering subcontract or labor subcontracting contract in the retrial civil ruling of the case of dispute over construction contract between Anqiu Hua’an Construction Co., Ltd
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and Wang Gang (No
.
126, Supreme People’s court, 2019) If a construction project has been subcontracted for several times, the actual constructor shall be the legal person, unincorporated enterprise, individual partnership, contractor and other civil subjects who actually invest funds, materials and labor in the construction of the project
.
In this case, although Wang Gang and Hua’an company did not sign a written affiliation agreement or borrowing qualification agreement, and Hua’an company claimed that its three branches participated in the construction management, it did not deny that Wang Gang actually invested funds, materials and labor in the project involved in the case
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Because Wang Gang does not have the qualification of construction engineering, even if several parties advocated by Hua’an company carry out the construction in the form of partnership and cooperation, it also belongs to the situation that Hua’an company allows unqualified personnel to undertake the construction in the name of the enterprise
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This situation should still be recognized as the affiliation of illegal subcontracting in the construction contract of construction engineering
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[relevant law] Article 43 in the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract disputes of construction projects (1), if the actual constructor brings a lawsuit with the subcontractor or illegal subcontractor as the defendant, the people’s court shall accept it according to law
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If the actual constructor claims rights with the employer as the defendant, the people’s court shall add the subcontractor or illegal subcontractor as the third party in the case, and after finding out the amount of the construction project price owed by the employer to the subcontractor or illegal subcontractor, judge the employer to be responsible for the actual constructor within the scope of the construction project price owed
.
Interpretation of the Supreme People’s Court on the application of law in the trial of construction contract disputes (I) [case index] (2020) lu05 Minzhong No
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1718, Wang Zhaoxiang, Lijin County Land Consolidation Center construction contract disputes (2019) supreme law minshen No
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126, Anqiu Huaan Construction Co., Ltd
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and Wang Gang construction project construction contract disputes.
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