Article 43 of the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract disputes (I) [hereinafter referred to as “construction judicial interpretation (I)”] stipulates that “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, That is to say, the actual constructor can break through the principle of contract relativity and directly claim the construction project price from the employer
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When the actual construction contractor claims the construction project price from the employer and the contractor according to the above judicial interpretation, if the construction contract signed by the employer and the contractor has an arbitration clause, should the arbitration clause be bound by the actual construction contractor, that is, should the actual construction contractor claim the right from the employer through litigation procedure or arbitration procedure? In judicial practice, there are two completely opposite opinions
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The first view of judgment: the actual constructor is not the main body of the construction contract between the employer and the contractor, and the right of the actual constructor to claim the construction project price from the employer is based on the right stipulated by law, so it is not bound by the arbitration clause in the construction contract of the contractor
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For example, in the (2019) Supreme People’s court case No
.
14, the Supreme People’s court held that “whether Wuxi COFCO has the right to invoke the arbitration clause in the agreement to claim the procedural rights in this case《 The main body of the agreement is Wuxi COFCO company and Jiangsu tianteng company
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Ye Guizong, the actual constructor, is not the Contracting Party of the agreement and is not bound by the arbitration clause in the agreement
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There is no factual basis for Wuxi COFCO to challenge the jurisdiction of the court of first instance by invoking the arbitration clause in the agreement
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For another example, in the case of Yu 03 min Zhi Zhong No
.
659, 2018, Luoyang intermediate people’s court held that “the second paragraph of Article 26 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 stipulates that” if the actual constructor claims rights with the employer as the defendant, the people’s court can add the subcontractor or illegal subcontractor as the party to the case
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The employer shall only be liable to the actual constructor within the scope of the project price owed
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“（ The author’s note: it is now the second paragraph of Article 43 of judicial interpretation of Construction Engineering (1)
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This provision allows the actual construction contractor to break through the relativity of the contract and claim the project arrears from the employer, so as to protect the legitimate rights and interests of migrant workers
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The rights and interests should be limited to the remuneration due to the actual construction content, and can not be extended to the rights and obligations of the whole contract
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According to the regulation, the actual construction contractor claims the project price from the employer, which is not based on the rights arising from the contract signed between the employer and the contractor, but directly based on the rights granted by the law, and is not bound by the jurisdiction agreement in the contract signed between the employer and the contractor
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In this case, the arbitration clause in the construction agreement signed by Shenghai company and Jian’an company has no binding force on Wang Xiangting
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In fact, Wang Xiangting has no right to apply to Luoyang Arbitration Commission for arbitration against Shenghai company according to the arbitration clause between Shenghai company and Jian’an company
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Therefore, Shenghai company requests to reject the plaintiff Wang Xiangting’s lawsuit on the ground that there is an arbitration clause in the construction agreement signed between Shenghai company and Jian’an company
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The reason is insufficient, and this court will not support it
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“
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In addition, (2020) lu05 minzhizhong No
.
26 case, (2017) yueminshen No
.
2686 case, etc., all have the same or similar views with the above-mentioned judgments
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The second judgment view: the basic legal relationship of the actual construction contractor claiming the construction project price from the employer originates from its contractual relationship with the contractor, and the rights claimed by the actual construction contractor to the employer are limited by the scope of rights enjoyed by the contractor to the employer
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Therefore, when the actual construction contractor claims the construction project price from the employer at the same time, It shall be subject to the arbitration clause in the construction contract of the contractor
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For example, in the (2019) Yue 02 min Zhong No
.
772 case, the higher people’s Court of Guangdong Province held that “this case is a dispute over the construction contract of the construction project, and Xu Chaorong, as the actual constructor of the project, requested the settlement and payment of the project funds from the employer, the contractor and the subcontractor, involving the settlement of the project funds between Xu Chaorong and Beijiang company, Beijiang company and Shaoguan water installation company
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The arbitration clause has been clearly stipulated in the construction agreement signed between Beijiang company and Shaoguan water supply installation company
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Therefore, the settlement and payment disputes between the two parties should be submitted to the arbitration committee agreed by both parties for arbitration, which does not belong to the scope of the people’s court
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Xu Chaorong claims that the basic legal relationship of the project price involved in the case is his contractual relationship with Beijiang company, and his claim to Shaoguan water supply installation company is limited by Beijiang company’s right to Shaoguan water supply installation company
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Therefore, if Xu Chaorong only sued Beijiang company, he would not be bound by the arbitration clause; However, Xu Chaorong, as the actual constructor, shall be bound by the arbitration clause in the construction agreement between Shaoguan water supply installation company and Beijiang company when claiming settlement and payment of the project price to the appellee such as Shaoguan water supply installation company
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Xu Chaorong has no right to unilaterally change the arbitration clause
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“
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For another example, in the (2019) Yue min Shen No
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3381 case, the higher people’s Court of Guangdong Province held that “according to the facts found out in this case, Luo Yuanming and the general contracting company of engineering construction of Guangzhou Design Institute, the contractor involved in the project, did not sign a subcontract or subcontract
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Luo Yuanming sued this case mainly on the basis of the construction contract of construction project involved in the case According to the project completion acceptance report and project settlement data of the project involved in the case, it can be seen that Luo Yuanming can directly claim the project funds from the employer Zhuhai maternal and child health care hospital beyond the relativity of the contract, It is based on the second paragraph of Article 26 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, which states that “if the actual constructor claims rights with the employer as the defendant, the people’s court may add the subcontractor or illegal subcontractor as the party to the case
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The employer shall only be liable to the actual construction contractor within the scope of the unpaid project price “(the author’s note: it is now the second paragraph of Article 43 of the judicial interpretation of Construction Engineering (1)), but this provision not only endows the actual construction contractor with the right to sue the employer directly to recover the project price, but also limits the scope of the actual construction contractor’s right of action, That is to say, the employer is only responsible for the actual construction within the scope of the project price owed
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It can be seen that the rights of the actual construction contractor to the employer are limited to and can not exceed the contract rights of the contractor to the employer
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In fact, the actual constructor has replaced the contractor to perform the construction contract signed between the contractor and the employer, and has formed the relationship of rights and obligations of subrogation; Moreover, if the actual construction contractor is willing to participate in or replace the contractor to perform the construction contract, it also indicates that he knows (or should know) in advance and accepts the agreed content of the construction contract, which should include the dispute settlement terms agreed in the contract
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Therefore, the settlement of disputes caused by the contract according to the dispute settlement method agreed in the construction contract of the construction project not only maintains the normal expectation of the employer for dispute settlement when signing the construction contract of the construction project, but also does not cause a surprise attack on the jurisdiction of the actual construction contractor, It shall be subject to the dispute resolution clause between the employer and the contractor.
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