Pan Junfeng: Research on new types of construction contract trial — Review and Prospect of the tenth anniversary of the implementation of judicial interpretation of construction contract, published in application of law, issue 4, 2015..
Construction workers who claim unpaid wages or labor remuneration shall be properly handled according to labor relations or employment relations.
Accordingly, the construction contractor specified in the contract law includes all the construction subjects of the construction contract of the construction project, and refers to the subject of the effective construction contract of the construction project, excluding the contractors who illegally subcontract or illegally subcontract.
in the main body of the contract, but there is no concept of actual constructor.
[identification of actual constructor] the original contract law of China Chapter 16 stipulates the construction project contract, and specifies the employer, general contractor, third party, contractor, subcontractor, subcontractor, constructor, etc.
Article 4, 25 and 26 of the interpretation use the concept of actual construction contractor, which refers to the contractor with invalid contract, such as sub contractor, contractor with illegal subcontract, contractor without qualification to sign construction contract with others in the name of qualified construction enterprise.
Article 272 of the contract law stipulates that a contractor shall not subcontract all of its contracted construction projects to a third party, or divide all of its contracted construction projects and subcontract them to a third party in the name of subcontracting.
Wang Yong: practical analysis of construction contract disputes of construction projects, Law Press, 2017 edition, page 115.
The construction of the main structure of the construction project must be completed by the contractor.
Articles 1, 4, 25 and 26 of the interpretation stipulate the actual constructor, involving the determination of the effectiveness of the contract, the employer’s claims and the protection of the interests of the actual constructor.
Edited by the first civil trial division of the Supreme People’s Court: understanding and application of the judicial interpretation of the construction contract of the Supreme People’s court, people’s court press, 2015 edition, page 178.
3, March 16, 2015): how to determine the scope of “actual constructor”? “Actual constructor” in the judicial interpretation of construction contract of construction project Refers to the contractor who subcontracts, illegally subcontracts or borrows the qualification of invalid construction project construction contract.
The contractor is prohibited from subcontracting the project to units without corresponding qualifications.
[1] To sum up, the actual construction contractor refers to the unit or individual that completes the construction of the construction project under the situation of invalid construction contract, including the contractor, sub contractor and The qualified constructor (affiliated constructor) does not include the Contractor’s performance assistant, legal professional subcontracting project contractor and labor operation contractor.
3.
[4] the identification of the identity of the actual constructor is not clearly stipulated by law, so it should be comprehensively grasped based on the overall situation of the case.
For the advance project, it shall be reviewed whether it has actually invested funds.
Subcontractors are prohibited from subcontracting the contracted projects.
When handling cases, courts at all levels should pay attention to distinguish between the “actual constructor” in judicial interpretation and the “constructor” expressed in legal articles.
If a party who does not fall within the above scope claims that the employer is the defendant for the unpaid project payment in accordance with paragraph 2 of Article 26 of the judicial interpretation of construction projects, it shall not be accepted.
If the construction project has been subcontracted or subcontracted several times, the actual constructor shall be the enterprise or individual that actually invested funds, materials and labor to carry out the project construction.
If it has been accepted, it shall rule to dismiss the lawsuit.
Article 12 of the answers to some difficult problems in the trial of construction contract dispute cases of Sichuan Higher People’s Court (cgfmi [2015] No.
If the delivery is delayed after repair, rework or reconstruction, the constructor shall be liable for breach of contract.
In order to distinguish from the concept of legal constructor stipulated in the contract law, the judicial interpretation of construction contract of construction project uses the concept of “actual constructor”.
[2] The identification of actual constructors mainly focuses on three aspects: first, it is necessary to review whether there are actual construction behaviors, including whether there are behaviors such as purchasing materials, paying workers’ wages and paying water and electricity fees during construction; Second, whether to participate in the signing and performance of the contract should be reviewed; Third, whether there is investment or collection should be reviewed.
2.
1.
[3] Some people think that it is mainly considered from the following aspects: first, participate in the signing of contracts, such as whether to be the signing subject of subcontracts and illegal subcontracts; Second, there are actual construction behaviors, including purchasing raw materials, paying workers’ wages, paying utilities and so on; Third, enjoy construction control in the process of contract performance, such as independent control over the personnel, property and materials of the project department; Fourth, review other relevant materials in the project.
If the construction project has been subcontracted for several times, the actual constructor shall be the legal person, unincorporated enterprise, individual partnership, contractor and other civil subjects that finally actually invest funds, materials and labor to carry out the project construction.
[emphasis of this paper] “actual constructor” refers to the subject who actually completes the project construction in the construction contract that is determined to be invalid according to the law, including construction enterprises, branches of construction enterprises, foremen and other legal persons, unincorporated organizations, individual citizens, etc.
The first to use the concept of actual constructor is the judicial interpretation of construction contract of construction project issued by the Supreme People’s court.
Article 281 of the original contract law stipulates that if the quality of the construction project is not in conformity with the agreement due to the reasons of the construction workers, the employer has the right to require the constructor to repair or rework or reconstruct free of charge within a reasonable period of time.
