|||||||||||||||||||||||||||||||||||||||||||||||| The Supreme People’s court held that, even if Shen Guangfu is the affiliated actual constructor, Article 26 of the judicial interpretation of the construction contract does not clearly provide that the affiliated actual constructor has the right to claim the right from the employer, and in this case, the contractor has claimed the right from the employer, so the claim should not be supported
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After filing the case on April 20, 2018, the court formed a collegial panel according to law and held a public hearing on June 21, 2018 to hear the case
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The two parties involved in the construction contract are metallurgical company and hand in hand company
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According to the second article of judicial interpretation of construction contract, “if the construction contract of construction project is invalid, but the construction project has passed the completion acceptance, the contractor requests to pay the project price according to the contract, which should be supported”, it can be seen that when the contract is invalid and the acceptance is qualified, the right subject to claim the project payment from the employer is the contractor rather than the actual constructor, and the actual constructor Shen Guangfu has no claim Hand in hand, the company claims the right to project funds
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The main system of signing the contract involved in the case is metallurgical company and the defendant of the original trial hand in hand
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（1） According to the first paragraph of Article 26 of the judicial interpretation of construction contract, if the actual constructor takes the subcontractor or illegal subcontractor as the defendant to sue, the people’s court shall accept it according to law
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Brief introduction to the case (judgment document) — – Civil Judgment of the Supreme People’s Court of the people’s Republic of China (2018) Supreme People’s court No
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The employer is only responsible for the actual construction within the scope of the project price owed
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Hand in hand company does not bear the following payments: 1370892871 yuan of multiple judgments of pile foundation project, 71739093 yuan of indirect costs involved in the project cost appraisal, based on 7597225275 yuan, from January 2013 to January 2013 The interest from January 18 to July 13, 2014 is RMB 300090398; 4
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” According to the regulations of the Ministry of finance, the relationship between Shen Guang and the metallurgical company is affiliated
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2、 Because the “construction contract” involved in the case is invalid, the court of first instance ruled that Shen Guangfu has no legal basis to have the priority of compensation for the discount or auction price of the completed project.
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That is to say, the basic principle of the rights claimed by the actual constructors in the relationship of subcontract and illegal subcontract is not to break through the relativity of contract
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The second paragraph stipulates that if the actual constructor claims rights with the employer as the defendant, the people’s court may add the subcontractor or illegal subcontractor as the party to the case
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Address: South section of Jingguang South Road, Erqi District, Zhengzhou City, Henan Province
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Entrusted agent ad litem: he XX, lawyer of XXX law firm
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Support the counterclaim request of hand-in-hand company in accordance with the law, and order the metallurgical company to compensate the economic loss of hand-in-hand company by RMB 4616044 or send it back for retrial; 5
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The litigation costs shall be borne by the appellee
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Facts and reasons: first, the relationship between Shen Guangfu and the metallurgical company belongs to affiliation, which is not applicable to Article 26 of the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract disputes (hereinafter referred to as the judicial interpretation of construction contract), and can not break through the relativity of the contract to claim rights to the employer
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The second paragraph is formulated to protect the interests of migrant workers, only in special cases
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In this case, if the contract is invalid due to affiliation, this article is not applicable
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Appeal request of hand in hand company: 1
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Legal representative: Shen x, chairman of the board of the company
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Rescind the civil judgment of Henan Higher People’s Court (2014) YFM erchzi No
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Legal representative: Jia XX, chairman of the board of the company
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According to Item 1 of Article 11 of the administrative measures for the identification, investigation and punishment of illegal acts such as illegal subcontracting of construction projects (Trial) (Jian Shi [2014] No
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Shen Guangfu is not the actual constructor
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118), “affiliation” in these Measures refers to the act of contracting projects by units or individuals in the name of other qualified construction units
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Appellee (plaintiff in the original trial and defendant in the counterclaim): Henan Metallurgical Construction Co., Ltd
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Click on the blue words above to follow the good news of senior high school entrance examination Shanghai monster junior high school The basic principle for international construction workers to claim rights is not to break through the relativity of contract, which can only be broken through under specific circumstances
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Moreover, Shen Guangfu, even if he belongs to the actual constructor, is also the affiliated actual constructor, and does not belong to the actual constructor under the circumstances of subcontracting and illegal subcontracting specified in Article 26 of judicial interpretation of construction contract
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(hereinafter referred to as hand-in-hand company) is not satisfied with the Henan Higher People’s Court (2014) Yufa min Er Chu Zi No No
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The case has now been concluded
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Address: No.27 Jingguang South Road, Erqi District, Zhengzhou City, Henan Province
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Even if Shen Guangfu is the actual constructor, because he is affiliated with metallurgical company, he can not break through the relativity of the contract and claim rights to the employer according to Article 26 of judicial interpretation of construction contract
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9 civil judgment, appeal to this court
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The appellee (the third person in the original trial): Shen XX, male, Han nationality, born on December 11, 1966, lives in Shangcheng County, Henan Province
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Address: 21 Jingqi Road, Jinshui District, Zhengzhou City, Henan Province
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9; 2
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Article 26 of the judicial interpretation of construction contract is applicable only if the construction project is illegally sub contracted or sub contracted, which is not applicable to affiliation
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Agent ad litem: Geng XX, an employee of the company
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391 appellant (original defendant and counterclaim plaintiff): Zhengzhou hand in hand Group Co., Ltd
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Only under specific circumstances can they break through the relativity of contract
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After January 2016, Shen Guangfu submitted an application to the court for a third party to participate in the trial, and he had no right to claim rights from the hand in hand company
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The contract involved in this case is invalid because Shen Guangfu borrowed the qualification of metallurgical company to cause the contract to be invalid
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Change the judgment that Shen Guangfu does not enjoy the priority of compensation; 3
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Legal representative: Jia XX, general manager of the company
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He Hongyi and Wang Juxian, the entrusted agents ad litem of hand in hand company, Shen Siyuan, Shen Guangfu, the original entrusted agents ad litem of metallurgical company, and Liu Dexi, the entrusted agents ad litem of Changda company, attended the lawsuit
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Agent ad litem: Wang XX, an employee of the company
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Entrusted agent ad litem: Hou XXX, an employee of the company
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From July 2014 to January 2016, he has been involved in the first instance litigation as the agent of metallurgical company, and he has admitted to be the project manager of metallurgical company for many times
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Defendant: Zhengzhou Changda Food Industry Co., Ltd
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Entrusted agent ad litem: Liu XX, an employee of the company
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The appellant Zhengzhou hand-in-hand Group Co., Ltd
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