After finding out the amount of the construction project price owed by the employer to the subcontractor or illegal subcontractor, the people’s court shall judge that the employer shall be liable to the actual constructor within the scope of the construction project price owed.” 。 This paper will make a systematic analysis on the premise, object, scope and mode of the claim of the actual constructor in subcontracting, illegal subcontracting and affiliation.
The subcontractor and illegal subcontractor are the defendants to claim rights; The first priority for the actual constructor to claim rights should be to claim from the opposite party of the contract.
Since the subcontractors and illegal subcontractors did not participate in or organize the implementation of the project construction, but only made profits from the project subcontracting (usually charged with management fees), even if the employer has not paid the project payment, and does not actively advocate the project balance because its interests have been met, the employer usually does not take the initiative to pay the project balance.
This path is the usual path.
The construction industry is a labor-intensive industry and one of the industries that attract the most migrant workers.
1、 Premise for the existence of the actual constructor – there is a specific case of invalid contract.
In addition to claiming the project funds from the employer, subcontractor and illegal subcontractor, the actual constructor also claims the interest of the project funds, liquidated damages, project rewards, loss compensation and other funds.
Solving the problem of wage arrears to migrant workers is related to the vital interests of migrant workers, and has become an urgent political task.
For these different types of payments, the actual constructor can break through the principle of relativity of the contract, and the range of payments claimed from the employer shall be limited to the project price, excluding liquidated damages, losses, compensation, etc.
The Supreme People’s court believes that, in principle, there is no actual constructor in the case of affiliation, but there are exceptions..
In reality, the actual construction workers composed of migrant workers can only claim their rights to subcontractors and illegal subcontractors.
3、 The identity of the “employer” in the process of the actual constructor claiming rights recognizes that the employer is the construction unit.
Identification of the actual constructor – the actual constructor who finally invested the manpower, materials and machinery generally refers to the constructor who finally invested the capital, labor, materials and mechanical equipment to actually carry out the construction.
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Foreword: Legal Analysis on the protection of the interests of actual constructors while the construction industry is developing rapidly, due to insufficient investment, low market access threshold of the construction industry and the current situation of oversupply in the construction market for a long time, many construction enterprises with low qualification level and poor reputation, or scattered construction teams without qualification led by foremen, have adopted the development mode close to large enterprises to cope with fierce market competition and survive Construction projects are contracted under the name of joint venture, internal contracting, or by subcontracting or illegal subcontracting.
The premise for the occurrence of the “actual constructor” is that the construction contract is invalid, such as subcontracting, illegal subcontracting, and contracting construction projects in the name of a qualified enterprise.
6、 Whether to claim the right of affiliation with the employer by borrowing the qualification as the actual constructor is the behavior of the unit and individual contracting the project in the name of other qualified construction units.
Since the judicial interpretation of construction projects in 2004 allowed actual construction personnel to claim rights from the employer, the judicial interpretation has been revised for many times, On december29,2020, the Supreme Court amended this judicial interpretation as follows: “If the actual constructor files a lawsuit against the subcontractor or illegal subcontractor as the defendant, the people’s court shall accept it according to law; if the actual constructor claims rights against the employer as the defendant, the people’s court shall add the subcontractor or illegal subcontractor as the third party of the case.
The actual constructor subrogated to claim the rights against the employer.
5、 Ways for the actual constructor to claim rights: 1.
This has aroused the great attention of the Party Central Committee and the State Council.
To claim rights against the employer as the defendant, the actual constructor generally needs to have three elements: (1) the actual constructor has creditor’s rights against the subcontractor or illegal Subcontractor; (2) The employer owes the construction project price to the subcontractor or illegal Subcontractor; (3) The amount of creditor’s rights enjoyed by the actual constructor to the subcontractor or illegal subcontractor shall not exceed the construction project price owed by the departure subcontractor to the subcontractor or illegal subcontractor.
(the specific circumstances of subcontracting and illegal subcontracting will be explained in detail in another article) II.
Those who become the general contractor and then contract out do not belong to the scope of the employer in the process of the actual constructor claiming rights.
According to the provisions of paragraph 2, Article 5 of the Interim Measures for the administration of contract awarding and contracting prices of construction projects, “the project price consists of costs (direct and indirect costs), profits (remuneration) and taxes”.
4、 The scope of the employer’s responsibility the actual constructor claims the scope of “project funds owed” from the employer.
In order to find out the project payment arrears between the employer, the subcontractor and the illegal subcontractor, the subcontractor or the illegal subcontractor is often added as the third party in the case.
The person who actually performed the Contractor’s obligations may be the person who constructed the whole construction project or the part of the construction project.
If the actual constructor brings a subrogation lawsuit in accordance with Article 535 of the civil code because the subcontractor or illegal subcontractor delayed in exercising the due creditor’s rights or the subordinate rights related to the creditor’s rights against the employer, affecting the realization of its due creditor’s rights, the people’s court shall support it.
When subcontractors and illegal subcontractors cannot be found, the rights and interests of migrant workers cannot be effectively guaranteed.
In order to eradicate the wage arrears of migrant workers, it is allowed to break through the principle of relativity of contracts under specific circumstances, within a certain range, and taking into account the rights and interests of other parties, provide judicial protection for vulnerable parties, especially the majority of migrant workers, and open up the channel for the protection of migrant workers’ rights and interests, so as to achieve substantive fairness.
According to Article 1 of the composition of construction and installation cost items issued by the Ministry of housing and urban rural development and the Ministry of finance, “construction and installation cost items are divided into labor cost, material cost, construction equipment use cost, enterprise management cost, profit, fees and taxes according to the composition of cost components”.
