The actual constructor can only apply when the contractor should settle without settlement or does not claim rights on the settlement of the project funds, or does not exercise or delay in exercising the due creditor’s rights, and the actual constructor sues the employer to break through the relativity of the contract.
The relevant effective judgment of the project involved in the case confirmed that due to the project involved in the case owed to others, a number of serial lawsuits have been triggered, and the relevant court decided that Xincheng Construction Company should bear the repayment responsibility for the relevant arrears of the project involved in the case.
He shall pay Xincheng Construction Company and bear the liability for breach of contract according to the contract.
Legal representative: Zhao Daoyin, executive director and general manager of the company.
The court of first instance found that “Xincheng Construction Company illegally lent its qualification, did not participate in the construction, and had no legal rights and interests in the contract involved in the case”, which was inconsistent with the facts, and the fact was wrong.
18 made by Liaocheng Intermediate People’s Court of Shandong Province, and (2020) Lu Min Zhong No.
Unless otherwise stipulated by law, the principle of contract relativity shall be strictly followed.
5.
The Civil Ruling of the Supreme People’s Court of the People’s Republic of China (2022) Supreme Court of the People’s Republic of China No.
3.
Entrusted litigation agent: Sun Ying, lawyer of Beijing Tianchi Juntai (Jinan) Law Firm.
Facts and reasons: (1) Xincheng Construction Company is the contracting subject of the Construction Project Construction Contract involved in the case, has legal rights and interests in the contract involved, and has the qualification of the plaintiff subject to claim payment of the project funds to Tianle Real Estate Company according to law.
4.
Qiu Xiaojun is not the subject of the contract involved in the case, and cannot set contract rights for him.
According to Article 122 of the Civil Procedure Law of the People’s Republic of China, the plaintiff is a citizen, legal person or other organization that has a direct interest in the case.
.
Entrusted litigation agent: Xing Guixia, lawyer of Beijing Tianchi Juntai (Jinan) Law Firm.
（2） The court of first instance applied the law wrongly.
The court of first instance directly denied the original contract relationship between the contractor and the Employer, denied the main qualification of the contractor, denied the contract rights and interests of the contractor, and instead let the actual constructor Qiu Xiaojun settle the project payment with the Employer, without facts and legal basis.
Tianle Real Estate Company, in violation of the contract, settles with Qiu Xiaojun without authorization and makes payment to him, which clearly constitutes a breach of contract.
The court of first instance held that “it was Qiu Xiaojun who actually performed the contract in the case, and the project payment should be settled by Qiu Xiaojun and Tianle Real Estate Company”, which was inconsistent with the contract, and the fact was wrong.
The domicile is located at the east of 10 meters north of the intersection of Tongyun Road and Da’an Street, Donglu Street Office, Xin County, Liaocheng City, Shandong Province.
On December 20, 2021, the Court made a civil ruling (2021) No.
Xincheng Construction Company submitted the Notification of Award, two copies of Construction Project Construction Contract, commencement report, foundation and main structure acceptance report and other evidence to prove that the contractor of the Construction Project Construction Contract in this case is Xincheng Construction Company, not Qiu Xiaojun.
Our court formed a collegial panel to hear the case according to law.
In this case, there is no case that Xincheng Construction Company, as the contractor, is lazy to claim the project payment from the Employer.
The applicant Xinxian Xincheng Construction Co., Ltd.
96 retrial applicant (plaintiff of the first instance and appellant of the second instance): Xinxian Xincheng Construction Co., Ltd.
Even if Article 43 of the interpretation stipulates that the actual constructor can break through the relativity of the contract and sue the employer, subcontractor and illegal subcontractor, it does not deny the contractor’s right to sue based on the contract.
2.
[The gist of the decision] In terms of legal provisions, there is no prohibitive provision on the right of action of the contractor with loan qualification.
According to Article 1 of the Interpretation of Construction Contract Disputes, the contractor who has signed the construction contract of the construction project as the counterpart of the contract, regardless of the lending qualification or other reasons, only involves the determination of the contract invalidity, and there is no restrictive provision that the contract letting party cannot be sued because of the lending qualification and the settlement of the project payment.
Xincheng Construction Company has actually paid more than 4 million yuan to relevant obligees.
According to the judicial interpretation and guidance of the Supreme Court, it is conditional for the actual constructor to break through the relativity of the contract.
(hereinafter referred to as Xincheng Construction Company) applied to this court for retrial because of the dispute over the construction contract between the respondent Shandong Tianle Real Estate Co., Ltd.
On the premise that the Contractor actively sues the Employer, the relativity of the contract shall not be breached.
Tianle Real Estate paid 300000 yuan to the account of Xincheng Construction Company according to the contract.
Accordingly, Xincheng Construction Company has a direct interest in the contract and the project involved in the case, and has already undertaken a huge amount of project debt due to the contract involved in the case.
The domicile is located in the south of Xihuan Road, Xin County, Liaocheng City, Shandong Province.
Respondent (defendant in the first instance and appellee in the second instance): Shandong Tianle Real Estate Co., Ltd.
The trial of this case has now been concluded.
The court of first instance held that Xincheng Construction Company has no direct interest in the case, which is obviously inconsistent with the facts, and found the facts wrong.
1.
Xincheng Construction Company applied for retrial according to the provisions of Item 2 and Item 6 of Article 200 of the Civil Procedure Law of the People’s Republic of China (before amendment), and requested to cancel the civil ruling (2020) Lu 15 Min Chu No.
According to the relevant provisions of the Construction Project Construction Contract involved in the case, Tianle Real Estate shall settle the project funds with Xincheng Construction Company and pay the project funds to the bank account of Xincheng Construction Company as agreed in the contract.
2732 made by Shandong Higher People’s Court, and instructed the court of first instance to hear the case.
Legal representative: Li Hongsheng, executive director and general manager of the company.
The court of first instance dismissed the lawsuit of Xincheng Construction Company on the basis of the plaintiff subject’s disqualification, without facts and legal basis.
3146 of the Supreme Court of Civil Affairs to bring the case to trial.
