“This case has not been concluded after the implementation of this judicial interpretation, and the above provisions apply to this case.
The contents of the three contracts are basically the same as the main contents of the above liability contract.
The 21st judges’ meeting of the first civil division of the Supreme Court in 2021 held that the actual constructor does not have the priority right to receive compensation for the construction project price.
The price of the construction project shall be compensated in priority with respect to the price converted or auctioned according to the nature of the construction project“ Article 17 of the interpretation of the Supreme People’s Court on the application of laws in the trial of disputes over construction contracts (II) stipulates that “if a contractor who has entered into a construction contract with the employer, according to Article 286 of the contract law, requests the price of the construction project to be compensated preferentially for the price of the project converted or auctioned, the people’s court shall support it.
However, there is no legal and effective construction contract between the actual constructors in subcontracting and illegal subcontracting and their predecessors, so this article cannot be applied to claim the priority of compensation for the construction project price.
Since the systematic interpretation of articles 793 and 807 of the civil code can confirm the above viewpoint, Article 35 of the construction interpretation (I) follows the provisions of Article 17 of the construction interpretation in 2018.
The title of the article is “several practical issues on the settlement of construction project price and its priority to compensation”.
According to the facts found out, on August 26, 2014, Yili Jinxin construction company signed three liability contracts with * * * Zhong, which agreed that * * * Zhong would undertake the construction of three bid sections of Hardware City Project: a building and a building in bid section 1, a building in bid section 2, an underground garage in bid section 16, and a building in bid section 3-15.
Furthermore, the protection of their rights should not be equal to the legal contractor.
Finally, Article 17 of the construction interpretation in 2018 actually adopts the second viewpoint through the expression of “the contractor who signs the construction contract with the employer”.
The right of priority compensation for construction project price refers to the right of the contractor to negotiate with the employer to discount the project or request the people’s court to auction the project according to law, and to have priority compensation for the project discount or auction price when the employer fails to pay the project price within a reasonable period after being urged by the contractor to pay the project price.
The actual constructor does not belong to the “contractor who has entered into the construction contract with the employer” and does not enjoy the priority of compensation for the construction project price.
However, the interpretation of Article 286 of the contract law, which has not expired at the time, “the employer fails to pay the project price as agreed”, also indicates that the premise of applying this article is that the contract is valid.
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2755 after examination, the court considers that this case is a case of applying for retrial, and should examine whether the original judgment has the circumstances specified in Item 6, article 200 of the Civil Procedure Law of the people’s Republic of China, which it claims, based on the reason of * * * Zhong’s application for retrial.
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The source of spreading legal knowledge and promoting the spirit of rule of law: in the trial practice of the first court of the Supreme People’s court, there are different understandings on whether the actual construction workers enjoy the priority of compensation for the construction project price.
The reason is the same as above and will not be repeated.
Article 286 of the contract law of the people’s Republic of China stipulates that: “If the employer fails to pay the price as agreed, the contractor may urge the employer to pay the price within a reasonable time limit.
The construction project under the construction contract involved in the case is constructed by * * * Zhong, who is the actual constructor of the project involved in the case.
On October 27, 2014, through the bidding procedures, Xinjiang Xinda Real Estate Company (the employer) and Yili Jinxin construction company (the Contractor) respectively signed three construction contracts.
According to the above laws and judicial interpretation, the court of second instance held that * * * Zhong, as the actual construction worker, does not have the priority to receive compensation for the construction project price, and the applicable laws are correct.
One point of view is that the actual constructor is the actual investor of the people, property and materials of the construction project, and the project funds claimed by him also include the wages payable to the construction workers, so he should be given the priority to receive compensation for the construction project price; Another point of view (also the author’s point of view) is that the actual construction personnel are involved in illegal construction, so the negative evaluation should be made from the value level.
It should be added that the contractor in this article does not include the contractor who has no corresponding construction qualification but has signed a construction contract with the employer.
According to Article 807 of the civil code of the people’s Republic of China and Article 35 of the interpretation of the Supreme People’s Court on the application of laws to the trial of construction contract disputes (I), only the contractor who has entered into a construction contract with the employer has the priority to receive compensation for the construction project price.
From the understanding of the author when he participated in the drafting and finalization of the construction interpretation in 2018, the parties differ greatly on whether the actual constructor has the priority to compensation for construction project price.
Practical viewpoint Author: Xiao Feng; Han Hao source: People’s Justice (application), issue 22, 2021.
Relevant case (2019) Supreme People’s court min Shen No.
* * * Zhong is not the contractor who signed the construction contract with the employer Xinjiang Xinda Real estate company.
If the employer fails to pay the price within the time limit, the contractor may negotiate with the employer to convert the project into price, or may apply to the people’s court to auction the project according to law.
