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The concept of actual constructor was first put forward in the interpretation of the Supreme People's Court on the application of law in the trial of disputes over construction contracts of construction projects (now repealed) implemented on January 1, 2005. Article 43 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 (I), which came into force on January 1, 2021, stipulates that, "If the actual constructor files a lawsuit against the subcontractor or illegal subcontractor as the defendant, the people's court shall accept it according to law. If the actual constructor claims the rights with the employer as the defendant, the people's court shall add the subcontractor or illegal subcontractor as the third party of the case. 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 that the employer shall be liable to the actual constructor within the scope of the construction project price owed. ”

The Supreme People's court only put forward the concept of the actual constructor and determined the basic principles to be followed in judicial practice. However, it did not accurately define the actual constructor, nor did it accurately define the scope of the actual constructor, nor did it make a clear statement on some rights of the actual constructor, such as the right of priority. This has caused the problems of inconsistent standards and judgment scales in judicial practice. Through consulting relevant materials and cases, the author puts forward his own superficial views.

(picture from the network)

1、 Defined as the premise of the actual constructor. According to the provisions of 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Court on the application of law in the trial of disputes over construction contracts of construction projects (now repealed), the actual constructor is a concept created to distinguish the subcontractor, professional subcontractor, labor subcontractor and constructor in legal and effective subcontracts, labor subcontracts and other contracts, provided that the contract previously concluded with the contractor is invalid, The Supreme Court confirmed this through effective judgments, professional meetings of judges, publishing books and other forms. The difference between validity and invalidity is that the judicial interpretation creates that the actual constructor corresponding to the invalid contract can break through the relativity of the contract to claim rights from the employer, while the parties to the contract corresponding to the valid contract can only claim rights from the opposite party according to the relativity of the contract, and have no right to claim rights from the employer.

2、 Scope of actual construction personnel. The Supreme Court only put forward the concept of the actual constructor, but did not define the scope of the actual constructor, which resulted in a wide variety of identification, different standards, and even inconsistent views of the Supreme Court. By searching cases and consulting relevant materials, the Supreme Court has at least the following views:

❐ 1. The reply of the Supreme People's Court on the proposal on unifying the judicial recognition conditions for actual constructors in construction contract disputes (2016) holds that "actual constructors" refer to the subjects who actually complete the construction in the construction contracts that are 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.

❐ 2. Guidance and reference for civil trial, Volume 2, general volume 78, 2019, issued by the first division of the people's Court of the Supreme People's Court: we believe that the actual constructor generally refers to the natural person, legal person or other organization that makes separate settlement with the owner, affiliated units and sub contractors for relatively independent single projects by raising funds, organizing personnel and machinery to enter the site for construction, and after the completion acceptance of the project is qualified. The main manifestations are as follows: civil subjects who are affiliated with other construction enterprises or borrow the qualifications of other construction enterprises and organize personnel and machinery to carry out actual construction; The civil subject of the last actual construction in the activities of layer upon layer subcontracting and illegal subcontracting.

❐ 3. The Supreme People's Court (2019) supreme law min Shen No. 5594 ruled that: the legal relationship between the construction project contractor and the migrant workers (teams) employed by the contractor is labor service, and the migrant workers (teams) as the personnel employed by the contractor to engage in construction services are not "actual constructors" in the above legal sense, so they do not have the preconditions for applying the provisions of Article 26 of the above judicial interpretation, Migrant workers (teams) use this provision to request the project employer to bear the liability for repayment within the scope of the unpaid project funds, which is lack of factual and legal basis.

❐ 4. Supreme law (2019) supreme law min Shen No. 126 ruling: "actual constructor" refers to the contractor, sub contractor, qualified constructor or affiliated constructor of illegal professional engineering subcontracting or labor operation subcontracting contract; 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 who finally actually invest funds, materials and labor to carry out the project construction.

❐ 5. Supreme People's Court (2021) Supreme People's court decision No. 5427: the actual constructor generally refers to the natural person, legal person or other organization that conducts separate settlement with the owner, affiliated units and sub contractors for relatively independent single projects by raising funds, organizing personnel and machinery to enter the site for construction, and after the completion acceptance of the project is qualified.

❐ 6. According to the professional meeting minutes of the judges of the first people's Court of the Supreme People's court in 2021, the judicial interpretation of construction engineering only regulates the relationship between subcontracting and illegal subcontracting, and does not stipulate that the actual constructor who borrows the qualification and the actual constructor in the multi-level subcontracting and illegal subcontracting relationship have the right to request the employer to bear the responsibility within the scope of the project payment owed. Therefore, according to Article 43 of the construction interpretation I, the actual constructors who can break through the principle of relativity of contracts and request the employer to assume responsibility within the scope of project funds owed do not include the actual constructors who borrow qualifications and in multi-level subcontracting and illegal subcontracting relationships.

❐ 7. The judicial interpretation (I) understanding and application of the project construction contract established by the Supreme People's Court (compiled by the first civil trial division of the Supreme People's court) holds that the "constructor" in the Civil Code covers all the construction subjects of the construction contract of the construction project, including the general contractor, the contractor, the professional project subcontractor and the subcontractor of labor operation. It should be noted that the recognition of the identity of "constructor" in the civil code is based on the legality and validity of the construction contract, and the relevant provisions do not apply to the constructor formed based on the relationship between illegal subcontracting and legal subcontracting. The "actual constructor" in this article is juxtaposed with the general contractor and subcontractor, and its target is different from the concept of the general contractor and subcontractor in a narrow sense, specifically referring to the contractor who illegally subcontracts and illegally subcontracts. In order to distinguish the constructors with legal status stipulated in the civil code, the interpretation uses the expression of "actual constructors".

It is not difficult to see that the views of the Supreme Court are also changing over time. The author personally believes that the view that the actual constructor refers to the contractor who illegally subcontracts and illegally subcontracts is most in line with the original intention of the legislation of judicial interpretation, and the scope of the actual constructor cannot be expanded at will.

3、 Whether the actual constructor who borrows the qualification can claim the right from the employer. If an unqualified actual constructor borrows a qualified unit to sign a contract with the employer, can the actual constructor claim rights from the employer? If so, is the basis of the claim based on the establishment of a factual contract relationship or the right of recourse stipulated in the judicial interpretation.

❐ 1. Supreme People's Court (2019) Supreme People's court judgment No. 1339 holds that: zhaoxiaodong is affiliated with the Fourth Nanjing Petrochemical Company. As the actual constructor of the subcontracted project in this case, he has also actually completed the corresponding project construction and formed a de facto construction relationship with the fourth Sinopec company. Zhao Xiaodong can request the fourth Sinopec company to pay the project payment based on the de facto legal relationship.

❐ 2. The professional meeting minutes of the judges of the first people's Court of the Supreme People's court in 2021 held that the unqualified actual constructor signed a construction contract with the employer in the name of a qualified construction enterprise. When the employer knew or should have known that the actual constructor borrowed the qualification was carrying out construction, a de facto construction contract relationship was formed between the employer and the actual constructor borrowed the qualification. The construction contract of the construction project is invalid because it violates the mandatory provisions of the law. The first paragraph of article 793 of the civil code of the people's Republic of China stipulates that "the construction contract of a construction project is invalid, but if the construction project passes the acceptance, the contractor may be compensated at a discount according to the contract on the project price." Therefore, in the case that the actual construction contractor borrowing the qualification forms a de facto construction contract relationship with the employer and the construction project has passed the acceptance, the actual construction contractor borrowing the qualification has the right to request the employer to make compensation according to the agreed discount on the project price in the contract.

It can be seen from this that the Supreme Court holds a positive attitude towards the claim of the actual constructor borrowing the qualification against the employer, and the basis of the claim is determined as the establishment of the factual contract relationship.

4、 If there is an arbitration clause agreed between the employer and the contractor, whether the actual constructor can bring a lawsuit to the court.

❐ 1. Subject to the arbitration clause, the court will not accept it. The effective judgment documents include (2015) myzz No. 170 ruling of the Supreme Court and (2013) mtzz No. 148 ruling of the Supreme Court.

❐ 2. It is not affected and can sue. The effective judgment documents include: (2019) Supreme People's court ruling No. 14.

The author personally believes that the actual constructor's claim to the employer is a right of recourse granted by law in the case of invalid contract, and a system created by judicial interpretation. It is not the case that the actual constructor is bound by the contract terms and determines the rights and obligations according to the terms in the case of valid contract. Moreover, the actual constructor is not a party in the contract between the employer and the contractor. Therefore, Allowing the actual constructor to bring a lawsuit to the court without being bound by the arbitration clause between the employer and the contractor is more conducive to protecting the legitimate rights and interests of the actual constructor.

5、 Whether the actual constructor has the priority to be compensated. Article 807 of the civil code provides that, "If the employer fails to pay the price as agreed, the contractor may urge the employer to pay the price within a reasonable period of time. If the employer fails to pay within the time limit, the contractor may negotiate with the employer to convert the project into price, or may request the people's court to auction the project in accordance with the law, except that it is not appropriate to convert or auction the project according to the nature of the construction project. The price of the construction project shall be paid in priority with the converted or auction price of the project." This provision only gives the contractor the priority to be compensated. Does the actual constructor have the priority to be compensated? The views in reality are also inconsistent.

❐ 1. (2021) Supreme People's court decision No. 727 holds that: if the actual constructor borrowing the qualification establishes a factual contract relationship with the employer, he has the priority to be compensated for the project funds. Similar judgments include Supreme Court (2019) supreme law min Shen No. 6085 judgment.

❐ 2. According to the minutes of the professional meeting of the judges of the first people's Court of the Supreme People's court in 2021, only the contractor who has entered into a construction contract with the employer has the priority to be compensated for the construction project price. The actual constructor does not belong to the "contractor who has concluded a construction contract with the employer" and does not have the priority to be compensated for the construction project price.

The author personally believes that if the actual construction contractor who borrows the qualification establishes a factual contract relationship with the employer, he can enjoy the priority of compensation according to Article 807 of the civil code. Other actual constructors who have no direct contractual relationship with the employer and have not established a factual contractual relationship shall not enjoy the priority of compensation.