The minutes of the meeting of professional judges of the first civil court of the Supreme People’s court Q1 can break through the principle of relativity of contracts and request the employer to bear the responsibility within the scope of unpaid project funds, excluding the actual construction workers in the borrowing of qualifications and multi-level subcontracting and illegal subcontracting relationships (minutes of the 20th meeting of professional judges of the first civil trial court of the Supreme People’s court in 2021) Does the actual constructor specified in Article 43 of the interpretation of the Supreme People’s Court on the application of law to the trial of construction contract disputes (I) (hereinafter referred to as “construction interpretation I”) include the actual construction workers in the borrowing of qualifications and multi-level subcontracting and illegal subcontracting relationships? Article 43 of the opinion of the judge’s meeting “construction interpretation I” stipulates: “If the actual constructor sues with the subcontractor or illegal subcontractor as the defendant, the people’s court shall accept it according to law.
Q3 if the contractor has sued the employer for the payment of the project funds, the actual constructor can apply to participate in the lawsuit as a third party before the end of the debate in the first instance, and if he claims otherwise that the employer should bear responsibility within the scope of the unpaid project funds, it should not be accepted (minutes of the 21st professional judge meeting of the first civil trial division of the Supreme People’s court in 2021) legal issues if the contractor has sued and requested the employer to pay the project funds, Can the actual constructor apply to participate in the lawsuit as a third party or sue separately to request the employer to bear the responsibility within the scope of the unpaid project funds? The opinion subcontracting and illegal subcontracting of the judge’s meeting involve two legal relationships between the three parties.
The application of this interpretation should be strictly controlled.
The actual constructor has the right to request the contractor to bear civil liability based on the fact of subcontracting or illegal subcontracting.
In the case that the contractor has sued the employer for the payment of the project funds, the actual constructor can apply to participate in the lawsuit as a third party before the end of the first instance debate, and its separate lawsuit requesting the employer to bear responsibility within the scope of the unpaid project funds shall not be accepted..
This article is interpreted to protect the interests of migrant workers and other construction workers, break through the principle of relativity of contracts, and allow the actual constructor to request the employer to bear responsibility within the scope of paying the project funds.
The construction contract of the construction project is invalid because it violates the mandatory provisions of the law.
Q2 if the actual construction contractor borrowing the qualification forms a de facto construction contract relationship with the employer and the project has passed the acceptance, it can request the employer to refer to the discount compensation agreed in the contract (minutes of the 20th meeting of professional judges of the first civil trial court of the Supreme People’s court in 2021) legal issues.
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 decide that the employer shall be liable to the actual constructor within the scope of the construction project price owed.
After finding out the amount of the construction project price owed by the employer to the subcontractor or illegal subcontractor, it shall be judged that the employer shall be liable for the actual construction contractor within the scope of the construction project price owed.” This paragraph is interpreted as a special provision to protect the interests of migrant workers and other construction workers.
”The interpretation of this article involves two legal relationships between the three parties: first, the construction contract relationship between the employer and the contractor; The second is the subcontracting or illegal subcontracting relationship between the contractor and the actual constructor.
This interpretation only regulates the relationship between subcontracting and illegal subcontracting, and does not stipulate that the actual constructor who borrows the qualification and the actual constructor in the multi-level subcontracting and illegal subcontracting relationship have the right to request the employer to bear the responsibility within the scope of unpaid project funds.
When the employer knows or should know that the actual constructor with the borrowed qualification is carrying out the construction, a de facto construction contract relationship between the employer and the actual constructor with the borrowed qualification is formed.
In principle, the parties should request their debtors to bear the responsibility according to their respective legal relations.
Is the actual construction contractor borrowing the qualification entitled to request the employer to compensate for the discount of its construction project? According to the opinion of the judge meeting, the unqualified actual constructor signs the construction contract with the employer in the name of a qualified construction enterprise.
In order to prevent different effective judgments ordering the employer to pay off the same debt to the contractor and the actual constructor respectively, it is necessary to coordinate the prosecution of the contractor and the actual constructor.
In practice, there are cases in which the contractor and the actual constructor sue the employer respectively to bear civil liability.
Paragraph 2 of Article 43 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 (I): “If the actual construction contractor 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 this case.
Therefore, according to the provisions of Article 43 of the construction interpretation I, the actual constructors who can break through the principle of relativity of contracts and request the employer to assume responsibility within the scope of unpaid project funds do not include the actual constructors who borrow qualifications and multi-level subcontracting and illegal subcontracting relationships.
First, the construction contract relationship between the employer and the contractor; The second is the subcontracting or illegal subcontracting relationship between the contractor and the actual constructor.
The contractor has the right to request the employer to pay the project payment according to the construction contract relationship with the employer.
If the actual constructor claims rights with the employer as the defendant, the people’s court shall add the subcontractor or illegal subcontractor as the third party of the case.
The first paragraph of article 793 of the civil code of the people’s Republic of China stipulates that “the construction contract of the construction project is invalid, but if the construction project passes the acceptance, the contractor can be compensated at a discount according to the contract on the project price.” Therefore, in the case that the actual construction contractor borrowing the qualification forms a de facto construction contract relationship with the employer and the construction project has passed the acceptance, the actual construction contractor borrowing the qualification has the right to request the employer to make compensation by referring to the agreed discount on the project price in the contract.
