Subcontracting and affiliation are highly concealed, and construction behaviors are overlapping, which is 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 has passed the completion acceptance, the actual constructor can directly request the employer to pay the project price by referring to the contract agreement on the project price.
In the 2018 Interpretation, the two forms of subcontracting, illegal subcontracting and affiliation have been stipulated respectively: Article 24 of the draft is about the provisions of the actual constructor suing the employer in the case of subcontracting and illegal subcontracting, and Article 25 stipulates the rights and remedies of the actual constructor in the case of affiliation.
If your rights and interests are infringed, please inform us and we will delete them immediately.
According to Article 146 of the Civil Code, “The civil legal act performed by the actor and the counterpart with false intention is invalid.
[Relevant opinions] Editor in chief: The first court of civil trial of the Supreme People’s Court Source: The 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 against the Employer in the case of subcontracting or 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.
The validity of the civil legal act hidden with false intention is dealt with in accordance with the relevant legal provisions” and the provisions of Article 1 of this interpretation, if the contract letting party knew or should have known that the actual constructor borrowed the qualification when signing the construction contract, the above construction contract is invalid.
” Finally, due to the great controversy in the trial practice, the clause was not passed.
In principle, the parties shall, in accordance with their respective legal relations, request their respective debtors to assume responsibilities.
The second is to express the hidden civil legal act with false intention, that is, the actual construction contractor who borrows the qualification and the contract letting party have a substantive construction contract relationship with respect to the subject matter of the construction contract.
There is no evidence to prove that the contract letting party knew that the actual constructor signed the contract in the name of the construction enterprise when signing the contract International construction workers who claim the project price from the Employer shall not be supported.
The contract letting party and the actual construction personnel actually form a series of legal relationships 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 relationships.
Therefore, the actual constructors who can break through the principle of contract relativity in accordance with the provisions of Article 43 of the Construction Engineering Interpretation I and request the Employer to assume the responsibility within the scope of the outstanding project funds do not include the actual constructors in the borrowing qualification and multi-level subcontracting and illegal subcontracting relationships.
The copyright belongs to the original author.
Fixing Socket Angular End Nail Plate
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 construction contractor to request the employer to assume responsibilities within the scope of project payment.
Affiliation refers to the act of units and individuals contracting projects in the name of other qualified construction units.
The application of this interpretation should be strictly controlled.
This interpretation only regulates the relationship between subcontracting and illegal subcontracting.
It does not specify that the actual constructor who borrows the qualification and the actual constructor in the relationship between multi-level subcontracting and illegal subcontracting have the right to request the Employer to assume the responsibility within the scope of the outstanding project funds.
There is also a situation in practice, that is, the contract letting party is not aware of the actual constructor’s borrowing the name of construction.
.
Generally, affiliation occurs before the project contracting, that is, whether the affiliation is determined by reviewing whether the affiliation participates in the bidding of the project, whether it has the right to decide on the conclusion of the contract, and whether it actually pays the bid security and fees.
The actual constructor borrows the qualified construction enterprise to sign the construction contract with the contract letting party, which actually includes two legal acts: one is the civil legal act that is implemented with false intention, that is, the construction contract signed by the qualified construction enterprise and the contract letting party.
The actual constructors who can break through the principle of contract relativity and request the Employer to assume the responsibility within the scope of the outstanding project funds do not include the actual constructors in the borrowing qualification and multi-level subcontracting and illegal subcontracting relationship (the minutes of the 20th professional judges’ meeting of the First Civil Court of the Supreme People’s Court in 2021) [Legal issues] Interpretation of the Supreme People’s Court on the applicable legal issues in the trial of construction contract disputes cases (I) (hereinafter referred to as “Construction Engineering Interpretation I”) Does the actual constructor specified in Article 43 include the actual constructor in the borrowing qualification and multi-level subcontracting and illegal subcontracting relationship? [Opinions of the judges’ meeting] Article 43 of the Construction Engineering Interpretation I stipulates that: “If the actual constructor sued the subcontractor or illegal subcontractor as the defendant, the people’s court shall accept the lawsuit according to law.
Article 25 stipulates that: “When signing the contract, the contract letting party knew that the actual constructor borrowed the qualification, and the actual constructor claimed the project price from the contract letting party, it should be supported; if the actual constructor claimed the project price from the construction enterprise with the loan qualification, the construction enterprise with the loan qualification should bear the responsibility within the scope of the project price it collected.
This article is only for communication and learning.
Click the blue words ↑ “Wang Daihua” above to follow this official account and push wonderful and practical legal content every day.
If the actual constructor claimed 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, 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 interpretation of this article involves two legal relationships between 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.
Some articles cannot be contacted with the original author when they are pushed.
We believe that the provisions of the second paragraph of this article do not apply to the actual constructor in the case of affiliation in principle.
