3509 civil ruling on September 10, 2019 and brought the case for trial.
The retrial applicant Xuchang Guangsha Construction and installation Co., Ltd.
Defendant of the first instance: LV fuzhang, male, born in October 1953, Han nationality, lives in Xuchang County, Henan Province.
Subcontractors are prohibited from subcontracting the contracted projects.
（2） The main evidence for determining the facts in the judgment of second instance is forged.
Article 67 of the construction law of the people’s Republic of China stipulates that if a contractor subcontracts the contracted project or subcontracts in violation of the provisions of this law, it shall be ordered to correct, its illegal income shall be confiscated, and a fine shall be imposed, and it may be ordered to suspend business for rectification and reduce its qualification level; If the circumstances are serious, the qualification certificate shall be revoked.
Source of this article: Interpretation of the supreme case study of the first people’s Court of the Supreme People’s Court on whether the actual construction personnel can provide services to subcontractors who have no contractual relationship with them The telephone reply to the problem of illegal subcontractor claiming project funds [(2021) Supreme faminta No.
735 of Henan Xuchang intermediate people’s court due to the dispute with the respondent Cheng Hetao, the defendant LV fuzhang of the first instance, Xuchang Guangjie real estate construction development Co., Ltd.
The first civil trial division of the Supreme People’s court may 10, 2021 attached: the main points of judgment and judgment opinions of Henan Higher People’s Court (2019) Yumin No.
On the ground of subcontracting, it is ruled that it should bear supplementary responsibility to the actual constructor, which has no legal basis.
Legal representative: zhaojianwei, general manager of the company.
Therefore, there is no legal basis for people who actually carry out construction based on multiple subcontracts or subcontracts to claim discounts and compensation from people who have no contractual relationship with them.
820 retrial applicant (original defendant): Xuchang Guangxia construction and installation Co., Ltd., domicile: No.
(hereinafter referred to as Hanyang company) over the construction contract of construction projects, Apply to the court for retrial.
The court of second instance found that the supplementary liability was in violation of the provisions of no complaint or no response.
3.
820].
Legal representative: xurongshen, general manager of the company.
Respondent (plaintiff of first instance and appellant of second instance): Cheng Hetao, male, born in April 1974, Han nationality, lives in Shangcheng County, Henan Province.
The trial of this case has been concluded.
The employer shall be liable to the actual constructor only within the scope of the unpaid project price.
The defendant in the first instance: Xuchang Hanyang Real Estate Co., Ltd., with its domicile at No.
The court formed a collegial panel according to law and heard the case in public.
Guangsha company applied for retrial, saying that it requested to revoke the second and third items of the second instance judgment, and to change the judgment to refute Cheng Hetao’s claim against Guangsha company.
2.
(hereinafter referred to as Guangjie company), Xuchang Hanyang Real Estate Co., Ltd.
Legal representative: zhaojianwei, general manager of the company.
The above laws stipulate the administrative liability that the subcontractor should bear, but do not stipulate the civil liability of the subcontractor to the actual constructor who has no contractual relationship with it.
The civil judgment of Henan Higher People’s Court (2019) Yumin re No.
It is forbidden for the contractor to subcontract the project to units without corresponding qualifications.
The defendant in the first instance: Xuchang Guangjie real estate construction development Co., Ltd., whose domicile is Xinji village, zushi office, Dongcheng District, Xuchang City, Henan Province.
103] Henan Higher People’s Court: your court has received the request report on whether the actual constructor can claim project funds from subcontractors and illegal subcontractors who have no contractual relationship with him [(2019) Yumin No.
(hereinafter referred to as Guangsha company) refused to accept the civil judgment (2019) No.
The court made (2019) yuminshen No.
Cheng Hetao’s claim is to let Guangxia company bear joint and several liability.
76, Xuyou Road, Xuchang City, Henan Province.
Since there is no final settlement between the two parties, if the case is not a case of a third party suing the subcontractor for claiming the project payment, the fact whether the subcontractor owes the project payment to the third party cannot be determined in this case, so the actual construction contractor requires the subcontractor to bear responsibility within the scope of the project payment owed to the third party lacks factual basis.
76, Xuyou Road, Xuchang City, Henan Province.
The court of second instance should examine whether it is established to bear joint and several liability.
After research, the reply is as follows: both the civil code of the people’s Republic of China and the construction law of the people’s Republic of China stipulate that contractors shall not subcontract all construction projects they contract to a third party, or subcontract all construction projects they contract to a third party in the name of subcontracting.
Cheng Hetao claimed in this case that the payment evidence was submitted by him, and the two copies of the “construction project construction labor contract” and the “Longhu Huating 9# building wage settlement sheet” between him and LV Fuchang were forged and could not be used as the basis for the final decision..
As the actual constructor, he has the right to claim the project payment directly from him, and can also require the employer to bear the responsibility within the scope of the unpaid project payment, but there is no legal basis for the actual constructor to require the subcontractor who has no contractual relationship with him to bear joint and several or supplementary liability to him.
If the subcontractor subcontracts its project to a third party, both parties have their own opinions on whether there is a problem of unpaid project funds between them.
Guangxia company entrusted litigation agents Jia Fengling, Xing Lijun, Cheng Hetao and their entrusted litigation agents zoushanmei, Zhang Yun and LV fuzhang to entrust litigation agents Zheng Yanyan, Guangjie company and Zhao Jianwei, the legal representatives of Hanyang company, to participate in the lawsuit.
If the actual construction contractor sues with the subcontractor and illegal subcontractor as the defendant, the people’s court shall accept it in accordance with the law.
If the actual construction contractor claims the rights with the employer as the defendant, the people’s court may add the subcontractor or illegal subcontractor as the party to the case.
820 case 1.
（1） There is no legal basis for Guangsha company to assume supplementary liability in the judgment of the second instance.
