"According to Article 43 of the Interpretation (I) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts (Fa Shi [2020] No. 25) (hereinafter referred to as the "Construction Engineering Interpretation I"), the actual constructor may claim that the employer pay the project price in violation of the relativity of the contract, but this provision only covers two relationships: subcontracting and illegal subcontracting. In the case of subcontracting at various levels of the project, illegal subcontracting at all levels, and construction with lending qualifications, can the contractor in the subcontracting relationship (hereinafter referred to as the 'subcontractor'), the illegal subcontractor and the affiliated party be recognized as the actual constructor? Under such circumstances, can the actual constructor break through the relativity of contract to claim the project payment from the employer? The author analyzes this issue for readers' reference. ”
1. In the case of subcontracting at various levels of the project, illegal subcontracting at all levels, and the construction of lending qualifications, the subcontractor, the illegal subcontractor and the affiliated party actually organize the construction, they may be found to be the actual constructor
At present, the criteria for determining the actual contractor in judicial practice are mainly considered from the following four aspects: (1) the actual contractor is the contractor of the invalid contract; (2) The construction content is a relatively independent single project in the construction project; (3) Actual organization of construction, investment of capital, manpower, material resources; (4) Have the right to control the project involved in the case, and be able to independently assume responsibility for the quality of the project. Under the circumstance that the above conditions are satisfied, whether it is a subcontractor in a layer-by-layer subcontracting relationship that is part of it, an illegal subcontractor in a layer-by-layer illegal subcontracting relationship, or an affiliated party in the case of a construction project with a loan qualification, it can be recognized as the actual constructor within the scope of the project in its construction part. If the subcontractor, illegal subcontractor and affiliated party directly subcontract or dismember the subcontractor after undertaking the project, and there is no actual construction, it shall not be deemed to be the actual constructor.
【Case】In the (2020) Zui Gao Fa Min Zhong No. 1131 Civil Judgment of the Supreme People's Court, it was held that the Supplementary Agreement II was signed by Chen Jiasong and Guizhou Construction Engineering No. 10 Construction Company as a joint party, and according to the agreement, Chen Jiasong was the project contractor appointed by Guizhou Construction Engineering No. 10 Construction Company and was the full investor of the project involved in the case. Guizhou Construction Engineering No.10 Construction Company was also unable to submit relevant evidence to prove the existence of an employment relationship between it and Chen Jiasong, and the above facts can be determined that Chen Jiasong and Guizhou Construction Engineering No.10 Construction Company were affiliated with each other, and Chen Jiasong was the actual constructor of the contract involved in the case.
【Case】In the (2019) Zui Gao Fa Min Shen No. 126 Civil Ruling, the Supreme People's Court held that the actual constructor refers to the contractor, subcontractor, contractor who borrows qualifications or is affiliated with the contractor of the illegal professional project subcontract or labor operation subcontract; If the construction project has been subcontracted several times, the actual constructor shall be a legal person, unincorporated enterprise, individual partnership, contractor and other civil entities that ultimately actually invest funds, materials and labor in the construction of the project.
【Case】In the civil judgment (2020) Lu Min Zhong No. 3186 of the Higher People's Court of Shandong Province, it was held that in this project, China Railway Construction Company was the general contractor of the project, and then China Railway Construction Company subcontracted the project to the municipal company, and the municipal company subcontracted the project to Guoen Company, which in turn subcontracted the project to Beijian Company, whether it was based on the determination of the effective judgment (2019) Lu Min Zhong No. 2854 or the statements of China Railway Construction Company and Guoen Company in this case. It is believed that the Beijing Shipbuilding Company is the actual builder of the above-mentioned project. According to the above facts, Guoen Company was not the actual constructor of the above-mentioned project, and there was no contractual relationship with China Railway Construction Company, and Guoen Company's request for China Railway Construction Company to pay for the project had neither a contractual nor legal basis, and its request was not established and should be rejected.
2. In the case of subcontracting at various levels of the project, illegal subcontracting at all levels, and lending qualifications, the mainstream view tends to be that the actual constructor has no right to directly claim the project payment from the employer
Since the implementation of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts of Construction Projects on January 1, 2005, there has been considerable controversy in judicial practice on the issue of whether the actual constructor can directly claim the project payment from the employer in the case of layer upon layer of subcontracting, layer upon layer of illegal subcontracting, and lending qualifications.
It was not until the First Civil Division of the Supreme People's Court proposed in the 20th meeting of professional judges in 2021 that "the actual constructor who can break through the principle of privity of contract and request the employer to bear responsibility within the scope of the outstanding project payment in accordance with Article 43 of the Construction Engineering Interpretation (I) does not include the actual constructor in the borrowing of qualifications and multi-level subcontracting and illegal subcontracting relationships, that is, the actual constructor as provided for in Article 43 of the Construction Engineering Interpretation (I) does not include the actual constructor in the borrowing of qualifications and multi-level subcontracting and illegal subcontracting relationships." In the actual course of adjudication, the courts have increasingly emphasized the need to strictly abide by the relativity of contracts, and the restrictions on the actual contractor's claim against the employer in the relationship of subcontracting, subcontracting and borrowing qualifications have become stricter.
【Case】The Supreme People's Court (2023) Zui Gao Fa Min Shen No. 659 Civil Ruling held that Zhang Xuezhen knew that it was Lu Benting and not Anhui Sanjian Company who established the construction contract relationship with him, and that Zhang Xuezhen should be determined to be the actual builder of the project who illegally subcontracted and subcontracted the project for many times. The Telephone Reply of the First Civil Division of the Supreme People's Court on Whether the Person Actually Carrying Out the Construction Work Can Claim the Project Payment from the Subcontractor or Illegal Subcontractor Who Has No Contractual Relationship with the Applicant [(2021) Zui Gao Fa Min Ta No. 103] states that there is no legal basis for an entity that actually carries out construction based on multiple subcontracts or subcontracts to claim compensation for the discount caused by the construction from a person who has no contractual relationship with it. According to the above reply, Zhang Xuezhen's claim that Anhui Sanjian Company should jointly bear the responsibility for the return of the project money with Lu Benting has no factual and legal basis and is not supported. …… The actual constructor who violates the principle of privity of contract and requests the employer to bear responsibility within the scope of the outstanding project payment does not include the actual constructor in the borrowing of qualifications and multi-level subcontracting and illegal subcontracting. In this case, Zhang Xuezhen's situation is not that of the actual contractor who can break through the relativity of the contract and request the employer to bear the corresponding liability, and his claim that Shuxin Company should bear joint and several liability within the scope of the outstanding project payment has no legal basis and should not be supported.
【Case】Guiyang Intermediate People's Court (2022) Qian 01 Min Zhong No. 2945 Civil Judgment held that, in principle, the parties should request their respective debtors to bear responsibility according to their respective legal relationships, which is interpreted to protect the interests of migrant workers and other construction workers, breaking through the principle of relativity of contract to allow the actual constructor to request the employer to bear responsibility within the scope of the outstanding project payment, but the determination of the scope of the actual constructor regulated in the interpretation of this article should be strictly grasped. The Interpretation only stipulates that the actual constructor in the relationship of subcontracting and illegal subcontracting may claim rights against the employer, but does not stipulate that the actual constructor in the relationship of borrowing qualifications and the actual constructor in the multi-layer subcontracting or multi-layer illegal subcontracting relationship may also claim rights against the employer, and the scope of application of the actual constructor cannot be arbitrarily expanded. In this case, Xie Mouxing and Wu Mouyan were the actual constructors of multi-storey illegal subcontracting, and this article did not apply to break through the relativity of the contract to claim rights against the employer, XX Ecological Cultural Tourism Company, so this court did not support Xie Mouxing and Wu Mouyan's request for XX Ecological Cultural Tourism Company to bear responsibility.
【Case】In the civil judgment of Guiyang Intermediate People's Court (2023) Qian 01 Min Zhong No. 4697, it was held that Hu Moumou, as the builder of the landscape project involved in the case, established a contract relativity with whom, which directly affected the realization of his litigation rights...... The fact that there are multi-layer illegal subcontracting and subcontracting in the 22 group projects involved in the case, Hu Moumou is not the actual constructor as stipulated in Article 43 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases of Disputes over Construction Contracts (1), and he cannot break through the relativity of contract to claim the project money involved in the case against a company and a company that does not have a contractual relativity relationship with him, and his claim against the company involved in the case and a certain company should be dismissed.
Of course, in some cases, there may also be exceptions due to the special circumstances of the case, and the actual constructor who is conditionally allowed to subcontract at various levels, illegally subcontract at various levels, or borrow qualifications can break through the relativity of the contract and directly claim the project payment from the employer.
【Case】Civil Ruling of the Supreme People's Court (2019) Zui Gao Fa Min Shen No. 3573: The court held that the fact that Liu Qiongying held the receipt of the project deposit and participated in the relevant meetings during the construction process can also confirm that she is the actual builder. Based on the above circumstances, the original judgment held that Great Wall Company was at fault for subcontracting, subcontracting and subcontracting the projects involved in the case, and that the relativity of the contracts was weakened under the circumstance that the subcontracting and subcontracting contracts were invalid, and that Great Wall Company had established a de facto relationship of rights and obligations for the construction of the project with Liu Qiongying and Qiu Taiping, and that there was no impropriety in the application of law.
After searching for cases, the author found that it is difficult to find cases in which adjudication institutions have held similar views in recent years, indicating that this view has become a non-mainstream existence in practice and needs to be paid attention to by readers.
3. The views of this article
In the author's opinion, in the case of subcontracting, illegal subcontracting or borrowing of qualifications, as long as the subcontractor, illegal subcontractor or affiliated party organizes the construction of a relatively independent single project, invests manpower, material resources and funds, and can assume responsibility for the quality of the project, it can be recognized as the actual constructor. It should be noted that after the release of the Minutes of the 20th Meeting of Professional Judges of the First Civil Division of the Supreme People's Court in 2021, the mainstream view in current judicial practice tends to be that the actual constructor in this case cannot claim the employer to pay the project price in accordance with Article 43 of the Construction Engineering Interpretation (I). It reflects that the adjudication authority is currently hearing cases involving disputes involving actual constructors, and more and more emphasis is placed on the need to strictly abide by legal principles, easily not to break through the relativity of contracts, and to avoid excessive protection of the interests of actual constructors, especially in the case of subcontracting, illegal subcontracting or borrowing qualifications, resulting in an imbalance of interests between all parties and breeding other disputes. At least until the Supreme People's Court issues a new judicial interpretation or judicial opinion, the actual constructor cannot apply the provisions of Article 43 of the Construction Engineering Interpretation (I) in this case, which has become the mainstream adjudication view.
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