Article 34 of the interpretation of the Supreme People’s Court on the application of law in the trial of disputes over construction contracts of construction projects (1) stipulates that: “if the actual constructor brings a lawsuit with the subcontractor or illegal subcontractor as the defendant, the people’s court shall accept it according to law
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If the actual constructor claims 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
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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
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” How to understand the concept of “actual constructor”? The Supreme People’s court held in the (2015) MSZ No
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919 civil ruling that: “the first paragraph stipulates that” if the actual constructor brings a lawsuit with the subcontractor or illegal subcontractor as the defendant, the people’s court shall accept it in accordance with the law
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“Comparing the content of the second paragraph, we can see that the first paragraph shall apply to the actual constructor’s lawsuit for project payment in principle, so as to avoid conflict The second paragraph is a special provision to break the relativity of contract, which aims to protect the legitimate rights and interests of migrant workers
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The actual construction person refers to the illegal acts such as subcontracting, illegal subcontracting, dismembering the contract
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The construction contract is deemed invalid, and the actual construction person is the actual construction person, which is different from the legal construction body such as the construction person, the contractor, the construction enterprise and so on
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The concept of the actual construction person is used in the judicial interpretation of construction engineering
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The actual constructors may be natural persons, construction enterprises with super qualification level, labor subcontracting enterprises with super qualification permission scope engaged in engineering foundation or structure construction, etc
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From the perspective of the personnel composition of the actual construction personnel, the actual construction personnel in the construction site are mostly migrant workers
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The actual construction contractor and its employer form a construction contract relationship
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The internal legal relationship of the actual construction contractor is the labor contract relationship or the labor contract relationship
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The wages or labor remuneration of migrant workers account for a high proportion in the project funds, and most of them are the basic living security costs of migrant workers
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For this reason, the second paragraph of Article 26 of the judicial interpretation of construction projects stipulates that the actual constructor is allowed to break through the relativity of the contract and claim the project arrears from the employer under special circumstances
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” The Supreme People’s Court (2018) Supreme People’s court civil ruling No
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5741 holds that: “according to Article 26 of the interpretation of the Supreme People’s Court on the application of law in the trial of disputes over construction contracts of construction projects (FA Shi [2004] No
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14), the actual constructor can break through the relativity of contracts and investigate the legal responsibility of the employer
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However, the “actual contractor” in a construction project refers to the contractor who actually completes the construction project in an invalid construction contract, that is, the actual contractor in the case of illegal subcontracting, illegal subcontracting and borrowing of qualification
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” Article 28 of the minutes of the national civil trial work conference of the Supreme People’s Court (2011) (FA Shi [2020] No
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25) stipulates: “when accepting construction contract disputes, the people’s court shall not arbitrarily expand the application scope of the second paragraph of Article 26 of the interpretation on the application of law in the trial of construction contract disputes, and shall strictly control the direction of the actual constructors Civil litigation brought by subcontractors, illegal subcontractors, general contractors and employers who have no contractual relationship with them, and the employer shall only be liable to the actual construction contractor within the scope of the project price owed
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” 1、 What are illegal subcontracting, illegal subcontracting and borrowing qualifications? 1
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The difference between illegal subcontracting and illegal subcontracting: the so-called “illegal subcontracting” refers to the illegal act that the contractor transfers the contracted project construction task to a third party after contracting the project, the transferor withdraws from the on-site contracting relationship, and the transferee becomes the other party to the contract
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The so-called “illegal subcontracting” refers to the following acts: the general contractor sub contracts the construction project to the unit without corresponding qualification conditions; the general contractor sub contracts the construction of the main structure of the construction project to other units without agreement in the general contract and without the approval of the construction unit Where a construction project is contracted by a unit or a subcontractor
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The differences between illegal subcontracting and illegal subcontracting are mainly reflected in the following aspects: (1) the subjects of the two are different
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The main body of illegal subcontracting is the general contractor and the sub contractor; the main body of illegal subcontracting is the general contractor and the sub contractor
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(2) The effect of the two contracts is different
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Subcontracting is an invalid act that is clearly prohibited by laws and regulations; illegal subcontracting is prohibited by law, and it is a legal act that the general contract of construction project clearly stipulates that subcontracting is allowed or approved by the construction unit
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(3) The objects of the two are different
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The object of subcontracting is the whole project of the construction contract; while subcontracting only refers to the sub project outside the main project, which is a part of the contract
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(4) The corresponding obligations of the two are different
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In the subcontract, the general contractor fails to perform all the obligations of the construction project contract and fails to perform the construction, management, technical guidance and other responsibilities; in the subcontract, the general contractor establishes a project department and sends professional and technical personnel to supervise, manage and guide the work contents of the subcontractor
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2
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Different cases of borrowing qualification should be treated differently: the so-called “borrowing qualification” refers to that the bidder does not have or does not have the bidding qualification
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In order to be able to bid, the bidder borrows qualified qualification certification materials, obtains the power of attorney from the legal representative, and borrows the official seal, so as to participate in the bidding in a formal and qualified capacity
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On the difference between “borrowing qualification” and “illegal subcontracting”, the Supreme People’s court held in the civil ruling (2013) MSZ No
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1608: “is Yunnan Shijian company and Hu Hong a subcontracting relationship or a borrowing qualification relationship
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In our opinion, the so-called “borrowing qualification” refers to the illegal contracting activities of unqualified actual constructors using the name of qualified construction enterprises to undertake projects
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The so-called illegal subcontracting, according to the provisions of the second paragraph of Article 78 of the State Council’s “Regulations on the quality management of construction projects” in 2000, includes the subcontracting of construction projects by general contractors to units that do not have the corresponding qualifications
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” On the issue of distinguishing “borrowing qualification” from “subcontracting”, the Supreme People’s court held in the (2019) Supreme People’s court civil ruling No
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729: “generally speaking, the distinction between subcontracting and affiliation should be judged mainly from whether the actual constructor (affiliation) has participated in the bidding, contract signing and other contracting and negotiation activities
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Subcontracting is that the contractor transfers the rights and obligations of the project to the actual constructor after undertaking the project
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The actual constructor in subcontracting generally does not participate in the bidding and signing the general contract
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His willingness to undertake the project is generally after the general contract is signed, while affiliation is that the contractor lends the qualification to the actual constructor, and the affiliation in the affiliation relationship is in the bidding and contract signing stage Generally, they have already participated in, or even signed the construction contract with the employer in the name of the agent or representative of the affiliated person
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Therefore, generally speaking, it is necessary to examine and determine whether it belongs to affiliation or subcontracting according to the payment subject and fund source of the bid security, whether the actual constructor (affiliation) has signed the contract as the entrusted agent of the contractor, whether the actual constructor (affiliation) has negotiated with the employer on contract matters, etc
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In this case, before CITIC won the bid and after Bai Deqiang signed the internal contract with CITIC, the actual constructor Bai Deqiang did not sign the contract as the entrusted agent of the contractor CITIC, nor did he negotiate with the employer Ruichang company on the contract matters
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Therefore, there is no factual basis to determine that CITIC and Bai Deqiang are affiliated.
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