It usually includes illegal subcontracting, illegal subcontracting and borrowing qualification
.
“These two provisions clearly state that the actual constructor who can directly sue the employer and claim the project price includes only the subcontractor and illegal subcontractor, excluding the constructor with borrowed qualification
.
According to the fact that the employer knows the borrowing qualification, it recognizes the actual constructor to complete the construction task, and directly forms the relationship of rights and obligations, etc
.
442) (hereinafter referred to as the minutes of the 2011 meeting of the Supreme Court) “when accepting disputes over construction contracts of construction projects, the people’s court shall not arbitrarily expand the scope of application of paragraph 2 of Article 26 of the first judicial interpretation of construction contracts, It is necessary to strictly control the civil litigation brought by the actual constructor against the subcontractor, illegal subcontractor, general contractor and employer who have no contractual relationship, and the employer shall be liable to the actual constructor only within the scope of unpaid project price
.
The two provisions on the actual construction workers in the above judicial interpretation are special provisions that break through the relativity of the contract and can be applied only when they strictly meet the main conditions
.
The above relevant provisions show that the scope of application of the actual constructors in the two judicial interpretations is subject to restrictive interpretation, which only includes subcontracting and illegal subcontracting, can not be expanded at will, does not include affiliated persons, and is only applicable to the wage range of migrant workers who owe labor subcontracting
.
In judicial practice, there are two views on the request of affiliated actual constructors to directly claim rights from the employer
.
Tel.: 13985958525] in disputes over construction contracts of construction projects, the actual construction contractor often claims rights from the employer
.
There are two contracts involved in affiliated actual constructors: there is an affiliated agreement between the affiliated person and the linked person (lending qualification party), and there is a construction contract between the linked person as the contractor and the employer
.
There are many theoretical viewpoints on the direct claim of rights by such actual constructors, but the adoption and identification of judges are different
.
The lender signs the contract in its own name, forming the entrustment contract relationship that the borrower is the principal and the lender is the trustee, According to Article 402 of the contract law, “if the agent enters into a contract with a third party in its own name and within the scope of authorization of the principal, and the third party knows the agency relationship between the agent and the principal at the time of entering into the contract, the contract directly binds the principal and the third party, unless there is conclusive evidence to prove that the contract only binds the agent and the third party.” According to the provisions of the entrustment contract, the actual constructor as the client can directly claim the project payment; Others are based on the employer’s informed consent and the principle of consistency of meaning
.
In practice, it generally refers to the investment of labor, materials The final construction unit or individual of machinery
.
In order to understand the relevant legal issues of such cases, This paper mainly analyzes the application, rights and obligations of affiliated actual constructors who borrow others’ construction qualifications to sign construction contracts
.
If the actual construction contractor claims the 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
.
I especially emphasize that we should strictly abide by the principle of contract relativity according to the first paragraph of this article and cannot arbitrarily expand the scope of application of the second paragraph of this article, Only when the underpayment of labor subcontracting project funds makes it impossible to pay the wages of migrant workers in the labor subcontracting relationship, can the employer be required to bear responsibility for the actual constructor within the scope of underpayment project price, and the employer’s scope of responsibility cannot be expanded at will “《 The second understanding and application of the judicial interpretation of the construction contract (page 499) states that the actual constructor does not include the affiliated person
.
The affiliated actual constructor can be understood as the actual constructor who borrows the construction qualification of others, signs the construction contract in the name of others and carries out the project construction (usually referred to as the affiliated person)
.
The above reasons are intended to enable the actual constructor to obtain construction consideration and achieve the balance of interests of all parties by directly suing the employer
.
“Article 24 of the Interpretation II of the Supreme People’s Court on the application of law in the trial of disputes over construction contracts of construction projects (hereinafter referred to as the Judicial Interpretation II of construction contracts)” if the actual constructor claims rights with the employer as the defendant, After finding out the amount of the construction project price owed by the employer to the subcontractor or illegal subcontractor, it is judged that the employer shall be liable to the actual constructor within the scope of the project price owed
.
The purpose is to protect the rights and interests of vulnerable groups of migrant workers and should not break through arbitrarily
.
The affiliated actual constructor cannot directly claim the project payment from the employer according to the above provisions
.
The employer shall only be liable to the actual constructor within the scope of the unpaid project price
.
According to the principle of relativity of the contract, the affiliated actual constructor has no right to directly claim rights, or cannot prove that there is a factual construction contract relationship between the affiliated constructor and the employer, and cannot prove that the employer knows and recognizes the actual constructor, There is no factual and legal basis for directly claiming the payment of the project price to the employer as the actual constructor.
.
Through combing these reasons, it is convenient for us to understand this problem from the perspective of judgment ideas
.
3、 Can the affiliated actual constructor directly claim rights from the employer? Since the affiliated actual constructor cannot claim rights according to the provisions of Article 26 and 24 of the judicial interpretation of the construction contract, does it have other legal basis to claim rights directly from the employer
.
Therefore, if the affiliated actual construction workers claim their rights according to the provisions of the two judicial interpretations, there is no legal basis
.
Notice of the Supreme People’s Court on printing and distributing the minutes of the national civil trial meeting (FA ban [2011] No
.
The identification of affiliated behavior is clearly stipulated in Articles 8 and 10 of the measures
.
Supporting reasons: some are based on the invalidity of the construction contract, the affiliated actual constructor has a factual right and obligation relationship with the employer, the affiliated person is the performer of the substantive obligation, the ultimate holder of the right, the suspended person does not directly perform the obligations agreed in the contract, and the affiliated person establishes a factual construction contract relationship with the employer; Based on the provisions on the return of both parties to an invalid contract, some construction workers can directly claim according to the claim basis of unjust enrichment because they materialize labor services and building materials in the construction project; Some are based on the entrustment contract relationship, that is, the employer knows the fact of affiliation when signing the contract
.
【 Li Mingfu, a lawyer from Guizhou, provides you with professional legal advice
.
Can the affiliated actual constructor claim rights according to the special provisions of the actual constructor in the judicial interpretation of construction contract? Article 26 of the judicial interpretation of construction contract “if the actual constructor sues with the subcontractor and illegal subcontractor as the defendant, The people’s court shall accept the case according to law
“; In his speech in 2015, Cheng Xinwen, President of the first civil division of the Supreme People’s court, once again mentioned that “fourth, the implementation of Article 26 of the judicial interpretation of construction projects is relatively chaotic in practice
.
The concept of affiliation is defined in Article 9 of the administrative measures for the identification, investigation and punishment of illegal acts of construction contracting and contracting of construction projects, which refers to the behavior of units or individuals contracting projects in the name of other qualified construction units
.
Both contracts are invalid due to violation of the mandatory provisions of laws and administrative regulations on borrowing qualification（ Violation of articles 1 and 4 of the judicial interpretation of construction contract (the construction contract signed by borrowing the construction qualification is invalid) II
.
1、 The concept of actual constructor, affiliated and relevant contract effectiveness the concept of actual constructor first appeared in Articles 1, 4, 25 and 26 of the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract disputes (hereinafter referred to as the judicial interpretation of construction contract I)
.
Reasons for not supporting: the main reason is that there is no construction contract relationship between the affiliated actual constructor and the employer
.
Although the party signing the construction contract is the lending qualification party, it is actually the entrusted lending qualification of the borrower
.
