The employer shall be liable to the actual construction contractor only to the extent of the unpaid project price.” Article 24 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 (II) (hereinafter referred to as “Judicial Interpretation II”) “If the actual constructor 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.
(3) the contractor who illegally subcontracts according to the construction law According to the contract law and other relevant provisions, the general contractor of construction projects may contract out some of the contracted projects to subcontractors with corresponding qualifications; However, except for the subcontracting agreed in the general contract, it must be approved by the construction unit; The construction of the main structure of a construction project must be completed by the general contractor itself.
It is illegal for the general contractor to subcontract the project to a unit (actual constructor) without corresponding qualifications or the subcontractor to subcontract the contracted project (actual constructor)..
(2) Illegal subcontracting refers to the act that the contractor, after contracting the project, fails to perform the responsibilities and obligations agreed in the contract, transfers all the contracted construction projects to the actual constructor, or dismembers all the contracted construction projects and contracts them to other units (actual constructors) in the name of subcontracting.
thus, The identification of the actual constructor shall meet the following conditions at the same time: (1) prerequisite – there is a construction contract that is determined to be invalid according to the law, according to the judicial interpretation I The actual construction contractor is the contractor of the invalid construction contract.
(2) Fundamental condition – the actual constructor has actually performed the obligations of the construction contract.
China implements the access system for the construction industry and the access threshold is high, which requires that the contractor must have corresponding qualifications to contract relevant projects.
He borrows or is affiliated with a qualified construction enterprise to participate in bidding, signing and other activities related to the project, and pays management fees to the construction enterprise who lends or is affiliated with the qualification.
2、 Manifestation of actual construction personnel (1) The actual constructor who borrows or is affiliated with a qualified contractor does not have the legal qualification of contracting construction subject.
1.
The prerequisite for the actual constructor is that the construction contract is invalid, such as illegal subcontracting, illegal subcontracting and contracting construction projects in the name of qualified enterprises.
After finding out the amount of the construction project price owed by the employer to the subcontractor or illegal subcontractor, it shall make a judgment that the employer shall be liable to the actual constructor within the scope of the construction project price owed.” Article 25 stipulates that “in accordance with Article 73 of the contract law, if the actual construction contractor brings a suit of subrogation on the ground that the subcontractor or illegal subcontractor is lazy in exercising its due creditor’s rights against the employer and causes damage to it, the people’s court shall support it.” The above judicial interpretation breaks through the principle of contract relativity and requires the employer who has no contractual relationship with the actual constructor to bear the payment responsibility.
Its purpose is to protect the interests of migrant workers.
In view of this, the Supreme People’s court gives the actual constructor the litigation right to recover the project arrears from the employer through judicial interpretation.
Under the current situation that China’s construction market is not standardized, many have low qualification levels Construction enterprises with poor reputation (even just a group of migrant workers temporarily led by the Contractor) the construction team actually engaged in construction often takes the way of relying on and affiliated with enterprises with corresponding qualifications to contract the project.
There is no actual performance of the contract obligations , but those who act as intermediaries in the process of illegal subcontracting cannot be recognized as the actual constructor.
The actual constructor should fully and actually perform the contract between the employer and the contractor, forming a de facto relationship of rights and obligations with the employer.
II Conditions for the actual constructor to require the employer to assume responsibility (I) the actual constructor has the corresponding subject qualification.
As a result, the problem of arrears of project funds is quite prominent, especially a large number of farmers The phenomenon of migrant workers’ wages is very serious, which affects the normal trading order of the construction market and social stability.
If the actual construction contractor 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.
In this case, the actual constructor acts as a legal contractor and actually performs the corresponding contracting obligations.
The actual constructor organizes the construction by himself, and the lending or affiliated enterprise is not responsible for the project.
When the subcontractor or illegal subcontractor does not actively claim the rights from the employer, the actual constructor cannot claim the rights from the employer even if the employer owes the project payment due to the fact that the actual constructor has no contractual relationship with the employer, resulting in the inability of migrant workers to obtain wages.
I The law is in accordance with Article 26 of the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract dispute cases (hereinafter referred to as “judicial interpretation I”) “If the actual construction contractor brings a lawsuit against the subcontractor or illegal subcontractor as the defendant, the people’s court shall accept it according to law.
After obtaining the project, it is handed over to the actual constructor for construction, from which the subcontractor or illegal subcontractor obtains certain benefits.
9594 of the fourth session of the 12th National People’s Congress (source: website of the Supreme People’s court, release time: January 24, 2017) of the Supreme People’s court, “actual constructor” It refers to the subject that actually completes the project construction in the construction contract that is determined to be invalid according to the law, including construction enterprises, branches of construction enterprises, foremen and other legal persons, unincorporated organizations, individual citizens, etc.
Conditions to be met by the actual constructor according to the reply to recommendation No.
Only when the contract obligations are fully performed can the actual constructor demand payment for the project within the scope of the unpaid part of the employer.
Under certain conditions, the employer shall bear joint and several payment liabilities to the actual constructor.
