The interpretation involves “actual constructors” in several articles.
Article 35 of the interpretation of construction projects (I) is a modification based on the provisions of Article 17 of the original interpretation of construction projects (II), which only modifies the “provisions of Article 286 of the contract law” to “provisions of article 807 of the civil code”.
Secondly, as for whether the actual constructor has the priority to be compensated for the construction project price, Article 807 of the Civil Code stipulates: “If the employer fails to pay the price as agreed, the contractor may urge the employer to pay the price within a reasonable period of time.
We believe that although article 508 of the interpretation of the Supreme People’s Court on the application of the Civil Procedure Law of the people’s Republic of China (FSH (2020) No.
Finally, how to deal with the claim that the actual constructor has priority to be compensated.
The actual constructor is not a civil subject stipulated by law, and the abolished interpretation of the Supreme People’s Court on the application of law in the trial of construction contract disputes of construction projects (FA Shi (2004) No.
In addition, Article 44 of the construction project interpretation (I) stipulates: “the people’s court shall support the actual construction contractor who, in accordance with Article 535 of the civil code, delays in exercising due creditor’s rights or subordinate rights related to such creditor’s rights against the employer, affecting the realization of its due creditor’s rights, and brings a suit of subrogation.” According to the understanding and application of the provisions of article 535 of the civil code, “the subordinate rights related to the creditor’s right” refers to the rights attached to the main creditor’s right, such as the right of security interest and the priority of repayment of the construction project price.
The actual rules have not changed, and the spirit of the rules of Article 17 of the original interpretation of construction projects (II) can still be used for reference.
To sum up, the actual constructor generally cannot claim the priority of compensation from the employer, but in specific circumstances, he can claim the priority of compensation by subrogation.
Later, the repealed interpretation of the Supreme People’s Court on the application of law in the trial of disputes over construction contracts (II) (Interpretation of construction projects (2018) No.
20, hereinafter referred to as the interpretation of the Civil Procedure Law) limits the applicable subject participating in the distribution procedure to citizens or other organizations, for cases where the enterprise legal person is the person to be enforced, there are priorities and security interests on the specific property to be executed, And when the property is not enough to pay off all debts, the people’s court still needs to distribute the proceeds of the case and make a distribution plan..
Therefore, Article 43 of the construction project interpretation (I) stipulates that the actual constructor can conditionally claim the project price from the employer, but does not give the actual constructor the right to directly claim the priority of repayment of the project price from the employer.
The price of the construction project shall be paid in priority with the price of the project converted or auctioned.”.
Article 35 of the interpretation of construction projects (I) stipulates that “if a contractor who has concluded a construction contract with the employer requests the price of the construction project to be repaid preferentially in accordance with the provisions of article 807 of the civil code, the people’s court shall support it.” Article 36 stipulates: “the priority of the contractor to be paid for the construction project price according to Article 807 of the civil code is superior to the mortgage and other creditor’s rights.” The above laws and judicial interpretations do not clearly stipulate that the actual constructor has the priority to be compensated.
First of all, what is the actual constructor.
25, hereinafter referred to as interpretation of construction projects (I), The concept of “actual constructor” continues to be used, and the connotation of the concept is basically consistent with the original construction engineering interpretation (I).
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If the employer fails to pay within the time limit, the contractor may negotiate with the employer to convert the project into price, or request the people’s court to auction the project in accordance with the law, except that it is not suitable to convert or auction the project according to the nature of the construction project.
Therefore, if the subcontractor or illegal subcontractor is a contractor who has signed a contract with the employer, the actual constructor can exercise the right of subrogation to claim the priority of compensation from the employer on behalf of the contractor.
After all, the judicial interpretation breaks through the relativity of creditor’s rights and gives the actual constructor the right to conditionally claim the project price from the employer, which is based on the purpose of protecting the rights and interests of construction workers in a weak position, and is not necessarily related to priority.
The relevant understanding and application point of view is that “actual constructors” generally refers to the construction units and individuals that specifically implement the project construction after the construction contract of the construction project is determined to be invalid, such as subcontractors, contractors who illegally subcontract, contractors who do not have construction qualifications, etc., but the connotation of “actual constructors” is slightly different in different articles and contexts, There are also some disputes.
14, hereinafter referred to as the original construction project interpretation (I)) uses the concept of “actual constructor” for the first time.
Ask qustions & answer answers ask qustions how the people’s court will review and handle the objection raised by the actual constructor who claims to have the priority to be compensated for the project funds? Answer: during the implementation of answers, when the court enforces the creditor’s rights of the project funds enjoyed by the contractor and prepares to dispose of the real estate under the name of the employer, it often encounters the situation that the actual constructor claims to have the priority right to be compensated for the construction project funds on the real estate.
20, hereinafter referred to as the original interpretation of construction projects (II) and the current interpretation of the Supreme People’s Court on the application of law in the trial of disputes over construction contracts (I) (Interpretation of construction projects (2020) No.
According to the understanding and application of Article 17 of the original “interpretation of construction projects (II)”, the person who enjoys the priority to be compensated for the project price according to law must have a direct construction contract relationship with the employer, and the inspector designer, subcontractor, actual constructor, supervisor of the construction project and the construction of decoration projects that have no contract relationship with the employer should not enjoy this right.
