The gist of the judgment: the actual constructor is the concept specified by the Supreme People’s Court in the judicial interpretation of the applicable legal issues in the trial of construction contract disputes.
Annex 1: In case of any of the following circumstances in the construction contract of the construction project, the interpretation of the Supreme People’s Court on the legal issues applicable to the trial of disputes over the construction contract of the construction project (I) (implemented as of January 1, 2021, Fa Shi [2020] No.
Due to the particularity of its normative situation, it is also appropriate to determine the identity of the actual constructor in the construction contract disputes involved in the specification.
Case of the Supreme Court Gazette: In addition to the construction contract dispute cases, can the people’s court determine the identity of the actual constructor in other types of cases? Except for construction contract disputes, the people’s court is not suitable to determine the identity of the actual constructor in other types of cases – Li Jianguo and Meng Fansheng, Changchun Shengxiang Construction Engineering Co., Ltd Changchun Teng’an Real Estate Development Co., Ltd.
149: Supreme People’s Court of the People’s Republic of China Trial Procedure: Trial Supervision Procedure Judges: Su Ge (Chief Judge), Li Mingyi, Zhang Nengbao Judgment Type: Civil Judgment Date: July 28, 2016 Judgment Document: Civil Judgment of the Supreme People’s Court of the People’s Republic of China.
Key words of the lawsuit against the execution objection of the outsider: the lawsuit against the execution objection of the outsider · the dispute over the construction contract of the construction project · the actual constructor · the type of identification case: civil case cause: the lawsuit against the execution objection of the outsider: (2016) Supreme People’s Court No.
This case is a lawsuit of execution objection by outsiders, not a construction contract dispute brought by the actual constructor with the Employer and the Contractor as the defendant.
Relevant laws and articles: Interpretation of the Supreme People’s Court on the Applicable Laws in the Trial of Disputes over Construction Contracts of Construction Projects (I), Article 1 (2), Article 15, Article 43 and Article 44.
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, and after finding out the amount of the construction project price owed by the employer to the subcontractor or illegal subcontractor, judge the employer to be responsible for the actual constructor within the scope of the construction project price owed.
The original judgment identified Li Jianguo as the actual constructor of the Lantianjiayuan Phase II project, which on the one hand is beyond the scope of this case, on the other hand, because the courts of first and second instance did not hear the construction contract dispute of the construction project, and did not focus on the claims of the parties involved in the project The court hearing, judgment and ruling are conducted based on the cross-examination of evidence, so the determination may be unfair and may have a certain impact on the rights and obligations of all parties involved in the project.
Entrusted agent: Meng Jun, lawyer of Jilin Chuangyi Law Firm.
Article 44 If the actual constructor, in accordance with the provisions of Article 535 of the Civil Code, delays in exercising the due creditor’s rights or the subordinate rights related to the creditor’s rights to the developer by the subcontractor or illegal subcontractor, affecting the realization of the due creditor’s rights, and brings a suit of subrogation, the people’s court shall support it.
Address: 7km away from Changbai Road, Lvyuan District, Changchun City, Jilin Province.
and other outsiders in the case of dissent from the execution of the case, which is published in the Bulletin of the Supreme People’s Court of the People’s Republic of China – Selected Judgment Documents, 2017, Issue 2 (total 244), sponsored by the General Office of the Supreme People’s Court.
149 retrial applicant (defendant of the first instance, appellant of the second instance): Meng Fansheng, male, Han nationality, born on June 17, 1970, living in Changchun, Jilin Province.
See the attachment for details.
Because of the particularity of the specification situation, it is also appropriate to identify the identity of the actual constructor in the construction contract dispute cases involved in the specification.
Respondent (plaintiff in the first instance and appellee in the second instance): Li Jianguo, male, Han nationality, born on June 30, 1961, living in Changchun, Jilin Province.
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Article 43 If the actual constructor brings a lawsuit against a subcontractor or illegal subcontractor, the people’s court shall accept it according to law.
Legal representative: Zhang Shiqi, chairman of the company.
Appendix 2: Judgment Document: Civil Judgment of the Supreme People’s Court of the People’s Republic of China (2016) Supreme Court of the People’s Republic of China No.
Disputed issues: In addition to construction contract disputes, can the people’s court determine the identity of the actual constructor in other types of cases? The court held that the actual constructor is the concept specified in the Supreme People’s Court’s Interpretation on the Applicable Law Issues in the Trial of Construction Contract Disputes (Editor’s Note: the judicial interpretation has expired, and the relevant provisions have been absorbed by the Supreme People’s Court’s Interpretation on the Applicable Law Issues in the Trial of Construction Contract Disputes (I), The purpose is to provide restrictive protection to those who have actually constructed the project in dispute but cannot claim the project payment due to the contract relationship.
25), The determination is invalid: (2) The unqualified actual constructor borrows the name of a qualified construction enterprise; Article 15 In case of a dispute over the quality of a construction project, the developer may file a lawsuit with the general contractor, the subcontractor and the actual constructor as the joint defendants.
See the attachment for details.
(formerly Changchun East Asia Construction Engineering Co., Ltd.).
Source of the case: See Li Jianguo and Meng Fansheng, Changchun Shengxiang Construction Engineering Co., Ltd.
Therefore, the determination made by the original judgment that Li Jianguo was the actual constructor of the second phase of Lantian Jiayuan project was inappropriate and should be corrected.
The retrial applicant (defendant in the first instance and appellant in the second instance): Changchun Shengxiang Construction Engineering Co., Ltd.
Entrusted agent: Yu Honghua, lawyer of Jilin Chuangyi Law Firm.
Entrusted agent: Qiao Hongbo, male, employee of the company.
