Therefore, the actual constructor can, based on the invalid contract relationship, pay compensation to the opposite party with direct contract relationship, that is, the illegal subcontractor The subcontractor claims the project payment.
The construction contract of construction project also needs to follow the principle of contract relativity.
Basis of laws and regulations: Interpretation of the Supreme People’s Court on the application of law to the trial of construction contract disputes (I) (FSH [2020] No.
The actual constructor is the legal person, unincorporated enterprise, individual partnership, contractor and other civil subjects who actually invest funds, materials and labor to carry out the project construction.
A civil legal act that violates public order and good customs shall be null and void.
In the multiple subcontracting and subcontracting of the project, the legal relationship is intertwined and complex.
Article 153 of the Civil Code: any civil legal act that violates the mandatory provisions of laws and administrative regulations shall be null and void.
The construction contract relationship between the employer and the general contractor, the illegal subcontracting and illegal subcontracting legal relationship between the general contractor and the subcontractor and the subcontractor, and the project contract relationship between the subcontractor, the subcontractor and the actual constructor may have layers of nested subcontracting from the general contractor to the actual constructor Illegal subcontracting relationship.
When the contract is invalid, the relativity of the contract content is weakened, but the contract subject, responsibility undertaking and other parts still reflect the principle of relativity of the contract.
The Contractor shall not subcontract all the construction projects contracted by him to a third party, or subcontract all the construction projects contracted by him to a third party in the name of subcontracting.
The relativity of contract determines that the liability for breach of contract is relative.
If the quality of the construction project is qualified, according to the provisions of the judicial interpretation of construction project (I), the actual constructor can request the agreed discount compensation of the project price with reference to the actually performed contract.
To a certain extent, the actual constructor can break through the relativity of the contract and claim the project payment from the employer.
Therefore, the contractor subcontracts or illegally subcontracts the construction project, so the signed construction contract shall be deemed invalid.
20, hereinafter referred to as the judicial interpretation of construction projects (II) (2018) and the judicial interpretation of construction projects (I) (2020) have made provisions on this.
The Civil Code stipulates that the Contractor shall not subcontract all the construction projects he contracted to a third party, or subcontract all the construction projects he contracted to a third party in the name of subcontracting.
In general, a contract has legal effect only on the parties to the contract, unless otherwise stipulated by law.
1、 Contract follows the principle of relativity, which is an important principle in civil and commercial legal judgment.
The third party shall be jointly and severally liable to the employer with the general contractor or the survey, design and construction contractor for the work results they have completed.
However, unless the mandatory provision does not invalidate the civil legal act.
(I) the actual constructor can break through the relativity of the contract and claim rights from the employer..
Contract relativity mainly includes: 1 Subject relativity, the legal relationship of the contract occurs between the subjects of the contract and has nothing to do with the third party outside the contract; 2.
25, hereinafter referred to as paragraph 2 of Article 1 of 2020 judicial interpretation of construction projects (I): construction contracts signed by contractors with others due to subcontracting or illegal subcontracting of construction projects, It shall be deemed invalid in accordance with the provisions of the first paragraph of Article 153 and the second and third paragraphs of article 791 of the civil code.
It occurs between the contract subjects, and the parties outside the contract subjects do not bear responsibility.
However, in many subcontracts and subcontracts, can he break through the relativity of the contract and claim the project payment from the contractor? There are disputes in judicial practice, which this paper intends to discuss one by one.
For the construction contract of construction project, in order to protect the interests of vulnerable groups such as migrant workers and maintain the stability of the construction market, the Supreme Court has given the actual constructor the ability to break through the relativity of the contract and claim the project payment to a certain extent.
▲▲ III.
Relativity of responsibility.
When the construction contract is invalid, it still has relativity.
the actual constructor claims to break through the relativity of the contract.
Subcontractors are prohibited from subcontracting the contracted projects.
Paragraph 2 of article 791 of the Civil Code: the general contractor or the contractor of survey, design and construction may, with the consent of the employer, entrust part of the work contracted by himself to a third party.
The German Civil Code stipulates that “the contract shall only take effect between the contracting parties; the contract shall not damage the third party, and the third party can enjoy the interests under the circumstances specified in article 1121 of this code.” Article 465 of the Civil Code stipulates: “a contract established according to law has legal effect only on the parties, unless otherwise provided by law.” Although there is no “contract relativity” between the lines, it establishes the principle of contract relativity.
The construction of the main structure of the construction project must be completed by the contractor.
The construction contract of the construction project is invalid.
14, hereinafter referred to as the judicial interpretation of construction projects in 2004) 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) (FSH [2018] No.
▲▲ II.
Clause 3: the contractor is prohibited from subcontracting the project to units without corresponding qualifications.
According to the provisions of the civil code, the exception to the breakthrough of the relativity of the contract is “otherwise stipulated by the law”.
As for the actual constructor’s breakthrough in the relativity of the contract, from the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract dispute cases of construction projects (fashi [2004] No.
Content relativity; The parties to the contract enjoy the rights and obligations agreed in the contract; 3.
