In the draft of 2018 interpretation for comments, the two forms of subcontracting, illegal subcontracting and affiliation have been specified respectively: Article 24 of the draft for comments is the provision on the actual constructor to sue the employer in the case of subcontracting and illegal subcontracting, and Article 25 provides the rights and remedies of the actual constructor in the case of affiliation.
In fact, the employer and the actual construction personnel form a series of legal relations around the conclusion and performance of the construction contract of the construction project, and the two parties will have the right of claim in debt law based on these legal relations.
In practice, there is another situation, that is, the employer is not aware of the actual constructor borrowing the name of construction..
Generally, the affiliation occurs before the project is contracted, that is, whether the affiliation is determined by examining whether the affiliation is involved in the bidding of the project, whether the affiliation has the right to decide on the conclusion of the contract, whether the affiliation actually pays the bid security and expenses.
In principle, the parties shall, according to their respective legal relations, request their respective debtors to bear the liability.
”The interpretation of this article involves two legal relationships among the three parties: one is 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 application of this interpretation should be strictly controlled.
Affiliation refers to the act of units and individuals contracting projects in the name of other qualified construction units.
The second is to express the hidden civil legal act with false intention, that is, the actual constructor borrowing the qualification and the employer have a substantial construction contract relationship with respect to the subject matter of the construction contract.
The interpretation of this article only regulates the relationship between subcontracting and illegal subcontracting, and does not specify that the actual constructor with borrowed qualification and the actual constructor in the multi-layer subcontracting and illegal subcontracting relationship have the right to request the employer to bear the responsibility within the scope of unpaid project funds.
The validity of the civil legal act concealed with false intention shall be handled in accordance with the relevant laws and regulations” and Article 1 of this interpretation, if the employer knows or should know the borrowed qualification of the actual constructor when signing the construction contract of the construction project, the above construction contract of the construction project is invalid.
This article is interpreted to protect the interests of migrant workers and other construction workers, break through the principle of contract relativity, and allow the actual constructor to request the employer to bear the responsibility within the scope of the project payment.
There is no evidence to prove that the employer knows that the actual constructor borrows the name of the construction enterprise to sign the contract when signing the contract, which is true If the construction workers claim the project price from the employer, they shall not support it.
Article 25 stipulates: “When signing the contract, the employer knows that the actual constructor borrows the qualification, and the actual constructor claims the project price from the employer, it shall be supported; if the actual constructor claims the project price from the construction enterprise with the lending qualification, the construction enterprise with the lending qualification shall bear the responsibility within the scope of the project price it collects.
Relevant opinions editor in chief: the first court of civil trial of the Supreme People’s court source: judicial interpretation of the new construction project construction contract of the Supreme People’s Court (I) understanding and application from the perspective of the text, this article only stipulates that the actual constructor can file a lawsuit with the employer in the case of subcontracting and illegal subcontracting, and does not specify the actual constructor who signs a construction project construction contract (affiliated) with others in the name of a qualified construction enterprise.
We believe that the provisions of the second paragraph of this article are not applicable to the actual construction personnel in the case of attachment in principle.
” Finally, the clause was not passed because of the great controversy in the trial practice.
Therefore, according to the provisions of Article 43 of construction interpretation I, the actual constructors who can request the employer to bear the responsibility within the scope of unpaid project funds in violation of the principle of contract relativity do not include the actual constructors in the borrowing qualification, multi-layer subcontracting and illegal subcontracting relationships.
Source: the 87 series of civil trial guidance and reference edited by the first people’s Court of the Supreme People’s court can break through the principle of contract relativity and request the employer to bear the responsibility within the scope of the unpaid project funds, excluding the actual constructors with borrowed qualifications and multi-layer subcontracting and illegal subcontracting relationships (minutes of the 20th meeting of professional judges of the first civil trial division of the Supreme People’s court in 2021) legal issues: does the actual constructor specified in Article 43 of the interpretation of the Supreme People’s Court on the applicable legal issues in the trial of construction contract disputes (I) (hereinafter referred to as the construction interpretation I) include the actual constructor in the borrowing qualification and multi-layer subcontracting and illegal subcontracting relationships? Article 43 of the opinions of the judges’ meeting construction engineering interpretation I stipulates that: “The people’s court shall accept the lawsuit filed by the actual constructor with the subcontractor or illegal subcontractor as the defendant according to law.
Subcontracting and affiliation have strong concealment and cross construction behaviors, which are difficult to distinguish in reality.
That is to say, in the case that the construction contract relationship of the construction project is invalid, but the construction project passes the completion acceptance, the actual constructor can directly request the employer to pay the project price according to the contract.
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 judge the employer to be responsible for the actual constructor within the scope of the construction project price owed.
According to Article 146 of the civil code, “the civil legal act performed by the actor and the counterpart with false intention is invalid.
Minutes of the meeting of the Supreme Court judges: the actual constructors with borrowed qualifications cannot request the employer to bear the responsibility within the scope of the unpaid project funds.
The construction contract signed between the actual constructor and the employer by borrowing a qualified construction enterprise actually includes two legal acts: one is the civil legal act performed with a false intention, that is, the construction contract signed between the qualified construction enterprise and the employer.
If the actual constructor 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 the case.
