Article 26 of the interpretation of the construction contract does not clearly stipulate that the affiliated actual constructor has the right to claim the rights from the employer.
In the affiliated relationship, the affiliated person entered into and performed the contract in the name of the affiliated person, which is different from the construction contract as the employer There is no contractual relationship between units.
Paragraph 1 of Article 26 of the judicial interpretation of the construction contract stipulates that if the actual construction contractor sues with the subcontractor or illegal subcontractor as the defendant, the people’s court shall accept it according to law.
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The court corrected the error of applicable law.
The hand-in-hand company held that Shen Guangfu was not the actual constructor.
During the second instance of the court, the metallurgical company reached a settlement agreement with the hand-in-hand company and Changda company, and the hand-in-hand company and Changda company paid the project funds to the metallurgical company, which was reviewed by the court and approved as (2018) The Supreme People’s Court confirmed the civil mediation document No.
Even if Shen Guangfu belonged to the actual constructor, he was also the affiliated actual constructor, and did not belong to the actual constructor under the circumstances of subcontracting and illegal subcontracting stipulated in Article 26 of the judicial interpretation of the construction contract , Shen Guangfu has no right to claim the project payment from him.
The Supreme Court held that according to 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 “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.
The employer shall be liable to the actual construction contractor only to the extent of the unpaid project price.” The actual constructor can claim rights from the employer, subcontractor and illegal subcontractor.
The two judgments submitted by Shen Guangfu to the court were supported by the affiliated actual constructor’s claim to the employer when the contractor did not claim to the employer, which is different from the situation of this case.
Zhongding company was judged to be responsible for paying the project payment.
In this sense, Beijing Construction Engineering Group appealed that the project was the affiliated construction of Huang Jintao before the suspension of work, so it should not bear the payment liability, and Huang Jintao should report to Mingguang hotel company The opinions directly put forward by the company and Mingguang tourism company have no legal basis.
The provisions of the second paragraph are formulated in order to protect the interests of migrant workers, considering that under the circumstances of subcontracting and illegal subcontracting, failure to break through the relativity of the contract will lead to the consequences of no way for migrant workers to ask for salary and intensification of contradictions.
Zhu Tianjun borrowed the qualification of Zhongding company and Wulan When the county land and Resources Bureau signed the construction contract involved in the case, Zhongding company, as the borrowed qualification party, lacked the true intention to sign the construction contract with the employer Wulan county land and Resources Bureau, and there was no substantive legal relationship between Zhongding company and Wulan county land and Resources Bureau.
For the project price actually completed, it can only claim the project price from the affiliated person according to the affiliated relationship, and cannot directly claim the project price from the employer across the affiliated person.
there is a creditor’s right and debt relationship between the employer and the affiliated party to pay the project funds according to the contract.
Paragraph 2 stipulates that the actual construction contractor shall take the employer as the defendant If claiming rights, the people’s court may add a subcontractor or illegal subcontractor as a party to the case.
The Supreme Court held that as to whether Shen Guangfu was the actual constructor, whether it should support his claim against the hand-in-hand company.
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In this case, Zhu Tianjun, as the actual constructor of the project involved in the case, was signing and signing the construction contract with the employer Wulan county land and Resources Bureau In the process of performing the construction contract, a de facto legal relationship is formed, and Zhu Tianjun has the right to claim the project payment from Wulan County Bureau of land and resources.
Interpretation of the Supreme People’s Court on the application of law in the trial of construction contract dispute cases of construction projects The provisions of Article 26 are not applicable to the affiliated situation because the actual constructor in the affiliated relationship cannot invoke the judicial interpretation to directly claim the project payment from the employer, rather than exempt the affiliated person from the payment obligation.
That is, the actual constructor in the relationship between subcontract and illegal subcontract shall claim rights on the basic principle of not breaking through the relativity of the contract, and the relativity of the contract can be broken only under specific circumstances.
The actual constructor in the affiliated relationship cannot claim rights from the employer according to Article 26 of the construction interpretation, but as the actual constructor of the project, it has the right to claim the project payment from the employer in the process of concluding and performing the construction contract.
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The employer shall be liable to the actual constructor only within the scope of the unpaid project price.
It is only applicable under special circumstances.
The Supreme Court held that under the affiliated relationship, the affiliated person enters into and performs the contract in the name of the affiliated person, and there is no contract with the construction unit as the employer Relationship.
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.
However, Zhongding company is the affiliated party and does not belong to the subcontractor, illegal subcontractor or employer.
When the contractor has claimed the rights from the employer, the claims of the affiliated actual constructor shall not be paid Yes.
For the project price actually completed, it can only claim the project price from the affiliated person according to the affiliated relationship, and cannot directly claim the project price from the employer across the affiliated person.
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Shen Guangfu believes that he is the actual constructor, the affiliated actual constructor has the right to claim the rights from the employer, and he has formed a factual construction contract relationship with the hand-in-hand company.
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The original judgment took the above provisions as the legal basis.
If the construction contract of the construction project signed due to the affiliated relationship is invalid, but the project has passed the completion acceptance, it is still in the actual constructor (affiliated person) .
2.
The actual construction contractor has the right to claim the project funds from the employer according to Article 26 of the construction interpretation, and the employer shall bear the payment responsibility to the actual construction workers within the scope of the project funds owed..
The metallurgical company in this case filed a lawsuit with the hand-in-hand company in 2014, and Shen Guangfu has claimed against the hand-in-hand company in the metallurgical company In the case of right, it should not be supported to request the hand-in-hand company to directly pay the project funds.
The court believes that even if Shen Guangfu is the affiliated actual constructor, Article 26 of the judicial interpretation of the construction contract does not specify the affiliated actual construction contract Workers have the right to claim their rights from the employer, and in this case, if the contractor has claimed their rights from the employer, their claim shall not be supported.
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