The actual constructor can claim rights against the employer in accordance with the interpretation of the Supreme People’s Court on the applicable legal issues in the trial of construction contract disputes of construction projects, and the employer will only be liable to the actual constructor within the scope of the unpaid project price..
9 of the Sixth Circuit Court of the Supreme People’s Court 2 Before the creditor’s right of the actual constructor is determined, if the creditor of the actual constructor requests to directly implement the project payment owed by the employer to the contractor, it will not be supported — the case of Hunan Wanli Construction Group Co., Ltd.
However, in the process of signing and performing the construction contract, the actual constructor and the employer form a de facto legal relationship, and the actual constructor has the right to directly claim the project payment from the employer.
However, the poor channels for the actual constructor to claim rights will directly lead to the construction workers’ wages not being paid in time.
Before the creditor’s right of the actual constructor is determined, if the creditor of the actual constructor requests to directly implement the project payment owed by the employer to the contractor, it will not be supported.
for the construction contract dispute case of the guest house construction project with the people’s Government of Binhai County.
After excluding labor costs, the remaining part of the project price is no different from ordinary bankruptcy claims, and there is no need to adopt special protection system arrangements.
Then, can the actual constructor break through the relativity of the contract and directly claim rights from the employer? Referee rule 1 The actual constructor borrows the qualification of the affiliated party to sign the construction contract with the employer, and the actual constructor has the right to directly claim the project payment from the employer – Case gist of Zhu Tianjun v.
However, in practice, the contractor who subcontracts or illegally subcontracts, that is, the actual constructor, is often blocked from claiming rights to the subcontractor and illegal subcontractor for a variety of reasons, and his rights are often not realized in time.
Case No.: (2019) Supreme Court of justice No.
The gist of the case: the labor cost is only a part of the construction project price.
and Wulan County Natural Resources Bureau construction contract dispute case: the actual constructor borrows the qualification of the affiliated party to sign the construction contract with the employer, Because there is no real intention to conclude a contract between the affiliated party and the employer, and there is no substantive legal relationship between the two parties, the actual constructor requires the affiliated party to bear the responsibility of paying the project payment 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, which should not be supported by the people’s court.
Before the settlement between the actual constructor and the contractor, whether the actual constructor still enjoys creditor’s rights against the contractor and the amount of creditor’s rights cannot be determined.
and the outsiders in the case of lijiangrong and zhangjianjun, the essence of the case: the relativity of the contract is the basis of the debt of the contract, There are two conditions for the actual constructor to have the right to claim the employer’s project price: one is that the contractor owes the actual construction labor cost, and the other is that the employer owes the contractor the project cost.
The interests of the actual construction workers are not completely equal to the wages of migrant workers.
and Shen Jinbiao, Jiangsu Zhongyuan Construction Group Co., Ltd The gist of the case of construction project construction contract dispute of Taicang Defeng Urban Rural Integration Construction Development Co., Ltd.: the actual constructor refers to the main body that actually completes the project construction under the situation of invalid contract, specifically including the Subcontractor under the situation of subcontracting, the Contractor under the situation of illegal subcontracting, and the affiliated person.
and Shen Jinbiao, Jiangsu Zhongyuan Construction Group Co., Ltd., Taicang Defeng Urban Rural Integration Construction Development Co., Ltd.: the actual constructor breaks through the relativity of the contract to claim rights from the employer, It is a special institutional arrangement made by the judicial interpretation to protect the rights and interests of migrant workers, and it is the legal right of the actual constructor.
If the subcontractor goes bankrupt, it will not affect the actual constructor to exercise the above rights.
3681 trial court: Yancheng intermediate people’s court, Jiangsu Province source: People’s justice · cases, No.
On the premise of confirming the subcontractor’s project payment debt, the employer shall be liable for paying off the actual constructor within the scope of the project payment owed to the subcontractor.
329: Supreme People’s court source: 2019 reference case No.
136 (June 2019) 3 When the construction enterprise as a subcontractor enters the bankruptcy liquidation, the actual constructor should declare the creditor’s rights to the administrator, and cannot avoid the bankruptcy subcontractor directly suing the employer – Wang Fuzhu, sun Suhang, etc.
35, 2021 4 The bankruptcy of the subcontractor does not affect the actual constructor to claim rights from the employer — case of construction contract dispute between domestic industry (Suzhou) Xinxing building materials Co., Ltd.
Generally speaking, the contract has relativity, and the actual constructor cannot break through the relativity of the contract to claim rights from the employer.
718 trial court: Hunan Higher People’s court case source: selected cases of the people’s court, general No.
Case No.: (2017) xiangminzhong No.
Case No.: (2021) Su 09 min Zhong No.
– domestic industry (Suzhou) Xinxing building materials Co., Ltd.
Sichuan Zhongding Construction Engineering Co., Ltd.
Case No.: (2019) Su 05 min re 92 trial court: Suzhou intermediate people’s court, Jiangsu Province source: People’s justice · cases, 2020, issue 20 5 The actual constructor refers to the main body that actually completes the project construction in the case of invalid contract, including the subcontractor in the case of subcontracting, the contractor in the case of illegal subcontracting, the affiliated person, etc.
In the case that the construction enterprise as a subcontractor enters bankruptcy liquidation, in order to ensure fair repayment, the actual constructor should declare the creditor’s rights to the administrator, and can no longer directly break through the relativity of the contract to file a specific lawsuit with the nature of subrogation against the employer, and generally require the employer to bear all the project price, including labor costs, within the scope of the project price owed to the subcontractor.
As for how to distribute the project price recovered by the administrator from the employer, it should be paid off in an orderly manner in accordance with the procedures stipulated in the bankruptcy law and the right levels stipulated in other laws and administrative regulations.
