In the process of project construction, he can be recognized as the actual constructor if he directly pays the equipment rental fee, material fee and workers’ salary involved in the case
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2
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4
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The relationship between the construction company and the natural person is not based on the qualification of the construction company
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In this case, according to the facts found in the original examination, after the signing of the construction contract of the construction project, Peng Yifang actually entered the site for construction, and Peng Yifang paid a deposit to Yong’an company, which is not only responsible for the on-site management of the project involved in the case, Moreover, all engineering data are mastered by him, and during the project construction, Peng Yifang directly pays the equipment rental fee, material fee and workers’ salary involved in the case
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He is not only responsible for the on-site management of the project involved in the case, but also has all the project data
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During the construction of the project involved in the case, Xingsheng company knew that Peng Yifang borrowed the qualification of Yong’an company to undertake the project, and recognized that Peng Yifang would complete the construction task of the project involved in the case
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Yong’an company claimed that the settlement was signed by Peng Yifang in malicious collusion with Xingsheng company, and did not submit sufficient evidence to prove that the settlement damaged its legitimate rights and interests
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Since there is no construction contract relationship between the employer and the contractor in the construction contract, the employer has no right to claim compensation for overdue completion from the contractor and the actual constructor in the construction contract
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Now both parties have settled the project involved in the case and confirmed the project area, project price and unpaid items involved in the case
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The actual construction of the project is organized by a natural person who borrows the qualification of the construction enterprise and pays a deposit to the employer
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In essence, Peng Yifang borrowed the qualification of Yong’an company to contract the project of Xingsheng company, and Yong’an company charged Peng Yifang a certain management fee
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According to Article 1 of the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract dispute cases, “the construction contract of a construction project shall be deemed invalid in accordance with item (5) of Article 52 of the contract law: (1) the contractor has not obtained the qualification of a construction enterprise or exceeds the qualification level（ 2） The construction contract of Xingsheng Xincheng garden 1#, 2# building construction project in this case is invalid in accordance with the provisions that the unqualified actual constructor borrows the name of a qualified construction enterprise.
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In this case, the construction contract of the construction project is invalid, but the project involved in the case has passed the completion acceptance
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After the actual construction is completed, Peng Yifang has the right to require Xingsheng company to pay the project price according to the contract
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Therefore, the court of first instance refused to allow Yong’an’s application for investigation and evidence collection, which was in line with the provisions of the law and did not violate the legal procedures
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Yong’an company also said that Peng Yifang was its employee, but it did not provide direct evidence that could reflect the labor relationship between the two sides, which was not enough to prove that Peng Yifang had a labor relationship with Yong’an company
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During the actual performance, the legal representative of Xingsheng company signed the construction and installation project settlement table with Peng Yifang to settle the project area, price and accounts payable involved in the case
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On the surface, Yong’an company and Xingsheng company signed the construction contract of Xingsheng Xincheng garden 1#, 2# building construction project
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It can be seen that the project involved in the case is actually under construction by Peng Yifang, and Yong’an company (the contractor of the construction contract of the construction project) has not submitted evidence materials related to the project to prove that it is actually responsible for the construction of the project involved in the case
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4
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Therefore, the relationship between Yong’an company and Peng Yifang is not between the company and internal employees, But Peng Yifang borrowed the qualification of Yong’an company to undertake the project, and there is an affiliated relationship between Peng Yifang and Yong’an company
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1
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2
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Therefore, Xingsheng company and Peng Yifang directly formed a relationship of rights and obligations, while there was no construction contract relationship between Yong’an company and Xingsheng company, Yong’an company sends a letter to Xingsheng company through Hunan Jiaoyang law firm, which is not binding on Xingsheng company
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Although administrative regulations have defined it and regulated it as an illegal act, it is still difficult to grasp it in judicial practice; Third, the amount of construction project disputes is often relatively large, the interests of all parties play a fierce game, and the judgment scale is difficult to be unified
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Whether Peng Yifang has the right to settle the project funds with Xingsheng company
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2、 With regard to whether the court of first instance had procedural violations, Article 95 of the interpretation of the Supreme People’s Court on the application of the Civil Procedure Law of the people’s Republic of China stipulates that: “the people’s court shall not allow the evidence applied for investigation and collection that is not related to the facts to be proved, meaningless to prove the facts to be proved, or otherwise unnecessary for investigation and collection.” In this case, Peng Yifang is the actual constructor of the project involved in the case, and he has the right to settle the project price involved in the case with Xingsheng company
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During the construction of the project involved in the case, the employer knows that the actual constructor borrows the qualification to undertake the project, and recognizes the project construction tasks completed by the actual constructor
If an unqualified natural person (actual constructor) signs a construction contract with the employer by borrowing the construction qualification of the construction enterprise, which violates the mandatory provisions of the law, the contract shall be deemed invalid
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2
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3
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Click “brilliant judge” above You can pay attention to shine judge personal wechat and provide you with communication platforms such as legal consultation, current affairs comments, case statements, legal papers and so on! Fairness and justice are brighter than the sun! Source: window of civil law practical issues in the field of construction engineering, the rights and interests of actual constructors in the case of affiliation have been controversial for a long time
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In combination with the above facts, Xingsheng company also has reason to believe that Peng Yifang has the right to settle, and the settlement agreement is deemed to be legal and valid
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According to Article 2 of the interpretation of the Supreme People’s Court on legal issues applicable to the trial of construction contract disputes of construction projects: “the construction contract of construction projects is invalid, but the construction projects have passed the completion acceptance, and the Contractor’s request to pay the project price according to the contract shall be supported”
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The relationship between the construction company and the natural person is not based on the qualification of the construction company, but on the qualification of the natural person
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3
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5
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Yong’an company requested to identify the project involved in the case in the original court of justice, which is obviously unnecessary for investigation and collection
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Although the construction contract of the construction project is invalid, but the project involved in the case has passed the completion acceptance, the actual constructor has the right to require the employer to pay the project price according to the contract after the actual construction is completed
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Therefore, Peng Yifang borrowed the construction qualification of Yong’an company to sign the construction project construction contract with Xingsheng company, which violates the mandatory provisions of the law, and the contract shall be deemed invalid
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Therefore, the court of first instance held that Peng Yifang had the right to settle the project funds correctly with Xingsheng company, and Yong’an company had no right to require Xingsheng company to make settlement and payment again
.
2
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The details are as follows: 1
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On the basis of the above evidence, the court of first instance comprehensively determined that Peng Yifang was the actual constructor of the project involved in the case, without any wrongdoing, in combination with the facts stated in the criminal judgment (2015) lxcz No
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Therefore, the employer and the actual constructor directly form a relationship of rights and obligations
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985 of Liuyang people’s Court of Hunan Province and the inquiry records of relevant personnel
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Therefore, it is reasonable for disputes to continue
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The contractor in the construction contract of construction project has no right to claim the project payment from the employer
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Whether Peng Yifang (actual constructor) has the right to settle the project funds with Xingsheng company (employer); 2、 Whether there is any procedural violation in the court of first instance
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6
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The court of second instance held that: 1
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The Supreme Court held that: after examination, the court held that the main issues in dispute in this case are: 1
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The reasons are as follows: firstly, there is no clear legal definition of the concept of actual construction person; Secondly, “affiliated” is a popular name in the industry
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When the project has been delivered to the employer and the actual constructor is the contractor, the project settlement shall be conducted between the actual constructor and the employer of Xingsheng company
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