3784 of the fifth session of the 13th National People’s Congress was issued on January 9, 2023.
More than ten years of judicial practice has proved that this judicial interpretation has positive significance in protecting the rights and interests of migrant workers in the construction industry.
How to judge and determine whether there is a legal labor relationship between the “internal contractor” and the construction enterprise should be in accordance with the Labor Contract Law of the People’s Republic of China and the relevant policy documents of the competent department of human resources and social security.
internal contracting) in accordance with the law.
Although the current laws and administrative regulations do not directly stipulate the internal contracting of the construction industry, since it is called internal contracting, the internal contractor should be the staff of the construction enterprise.
At the same time, the Regulations on Ensuring the Wage Payment of Migrant Workers also stipulates that the administrative department of human resources and social security is responsible for the organization and coordination of ensuring the wage payment of migrant workers, and requires the competent departments of housing and urban construction, transportation, water conservancy and other related industries, and the development and reform departments responsible for the examination and approval of government-invested projects, as well as the finance, judicial administration, natural resources, the People’s Bank of China, audit, state-owned assets management, taxation Market supervision, financial supervision and other departments should do a good job in ensuring the payment of migrant workers’ wages according to their duties.
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According to Article 78 of the Regulations on the Quality Management of Construction Projects issued by the State Council, subcontracting and illegal subcontracting are clearly defined.
According to the provisions of the Legislative Law of the People’s Republic of China, the judicial interpretation should not directly regulate and guarantee the “internal project economic responsibility system contract management” of construction enterprises.
Of course, it is necessary to summarize practical experience and coordinate with the industry competent department to determine whether and how the identification standards of “internal contractors” should be different from those of ordinary employees.
The reply is as follows: 1 On the determination of the actual constructor, Article 26 of the Interpretation of the Supreme People’s Court on the Legal Issues Applicable to the Trial of Disputes over Construction Contract Cases promulgated on October 25, 2004 stipulates that: “The people’s court shall accept the lawsuit brought by the actual constructor with the subcontractor or the illegal subcontractor as the defendant.
Referring to Article 86 of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China (amended in 2022) on the interpretation of the “staff” of the parties in Item 2, Paragraph 2, Article 61 of the Civil Procedure Law of the People’s Republic of China, the staff of the construction enterprise shall refer to the “staff with legal labor and personnel relations” with the construction enterprise.
Key points The scope of the actual constructor in the judicial interpretation should be determined.
As you said, “great changes have taken place in the construction industry and relevant supporting laws and regulations”.
Your suggestion on improving the judicial interpretation of the actual construction personnel and the legalization of the internal contract responsibility of the project has been received.
It only refers to the third party corresponding to the subcontractor or illegal subcontractor identified in accordance with the Regulations on the Quality Management of Construction Projects, other than the construction project developer and the contractor, and should not include the person who implements the “internal project economic responsibility system contracting” (i.e.
The employer shall only be responsible for the actual constructor within the scope of the unpaid project price.” The reason for breaking the contract relativity is to make such provision, It is to protect the legitimate rights and interests of migrant workers engaged in the construction industry.
In the new situation, especially in the context of the implementation of the Civil Code of the People’s Republic of China, it is necessary to improve the content of the judicial interpretation concerning the “actual constructor”, study how to accurately apply the contract legal system stipulated in the Civil Code of the People’s Republic of China, and study how to connect the judicial interpretation with the relevant provisions of the Regulations on the Protection of the Wage Payment of Migrant Workers, So as to protect the legitimate rights and interests of both construction enterprises and construction workers according to law.
If the actual constructor claims rights with the employer as the defendant, the people’s court may add the subcontractor or the illegal subcontractor as the party to the case.
According to judicial interpretation, the actual constructor corresponds to the subcontractor and illegal subcontractor.
Only in this way can the legitimate rights and interests of both employers and workers be protected in accordance with the law, and some construction enterprises can be prevented from subcontracting and lending their qualifications (affiliation) in the name of “internal contracting”.
internal contracting) in accordance with the provisions of the law.
Therefore, the scope of the actual construction personnel in the judicial interpretation should be determined, which only refers to the third party corresponding to the subcontractors or illegal subcontractors identified in accordance with the Regulations on the Quality Management of Construction Projects, other than the construction project contract letting party and the contractor, and should not include those who implement the “internal project economic responsibility system contracting” (i.e.
The reply to the recommendation No.
2、 On the improvement of the judicial interpretation concerning the content of “actual constructor” and the legal protection of the “internal contracting” business model of construction enterprises, the provisions of the Supreme People’s Court on the protection of the rights and interests of the actual constructor in the judicial interpretation in 2004 were in line with the social needs at that time.
As an administrative regulation specifically guaranteeing the payment of migrant workers’ wages, the Regulations on the Protection of the Payment of Migrant Workers’ Wages promulgated by the State Council on December 30, 2019 made special provisions on the payment of migrant workers’ wages in the field of project construction, in addition to the requirement that “the construction unit should have the financial arrangements to meet the needs of construction”, “the project funds should be allocated in time according to the contract agreement, and the labor costs should be allocated to the special account for migrant workers’ wages in time and in full”, Article 30 clearly stipulates that the subcontractor shall be directly responsible for the payment of migrant workers’ wages in the case of subcontracting and subcontracting, and the general construction contractor shall pay off.
