Undoubtedly, the failure of an unqualified actual construction person to sign a construction contract with another person in the name of a qualified construction company is invalid. However, the legal consequences of the invalidity of the contract are the difficulties and hotspots in the judicial practice. Whether the person who is affiliated or the person being called has the right to claim the project payment from the contractor, there is no doubt that the judicial decision is more confusing, and the phenomenon of different judgments in the same case is more serious.
Viewpoint 1: The caller has no right to directly claim the project payment to the contractor.
[Case Name] Tianjin Jianbang Foundation Engineering Co., Ltd. and China Metallurgical Construction Engineering Group Co., Ltd., Tianjin Bochuan Geotechnical Engineering Co., Ltd.
[Case Index] Supreme People's Court (2017) Supreme People's Court No. 3613 Civil Ruling
[referee reason]
The court held that the focus of the retrial review in this case is whether the Jianbang foundation company has the right to claim the amount of the project amounting to RMB 4.03 million.
In the retrial application, Jianbang Foundation Company does not deny that the parties involved in the subcontract, the construction of the project, the recovery of the project, the settlement of the settlement materials, and the submission of the construction materials are all carried out in the name of Bochuan Geotechnical Co., Ltd. and participate in related work. The trustees Tian Lei, Zheng Guangjun and others also have the power of attorney from Bochuan Geotechnical Co., Ltd., but only claim that they have a relationship with Bochuan Geotechnical Co., Ltd., and borrowed the construction qualification of Bochuan Geotechnical Co., Ltd. Actual construction person. In the case of anchoring construction, there are two legal relationships of different natures and different contents. One is the legal relationship of construction engineering, and the other is the legal relationship. According to the principle of contractual relativity, the rights and obligations of all parties should be handled separately according to the relevant contract. . According to the facts recognized by the above-mentioned Jianbang foundation company, the second-instance judgment is that the parties to the contract for the legal relationship of the construction project are China Metallurgical Group Corporation and Bochuan Geotechnical Corporation, and there is no improperness. Jianbang Foundation Company did not provide evidence to prove that it formed a de facto construction contract relationship with China Metallurgical Group Co., Ltd. Therefore, even if it is determined that Jianbang Foundation Company is the actual constructor of the project, it has no right to breach the contract. Sexuality, directly to the non-contractual counterpart China Metallurgical Group Co., Ltd. advocated the construction project contract rights. As for the internal rights and obligations between Jianbang Foundation and Bochuan Geotechnical Corporation, the two sides can still find another legal solution. Article 26 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Cases of Construction Project Construction Contract Disputes applies to the illegal subcontracting and illegal subcontracting of construction projects, and does not apply to the case of aggrief. But the verdict was not inappropriate. The second article of the explanation gives the right subject of the claim to the contractor rather than the actual constructor. The Jianbang foundation company claims that the actual constructor can directly claim the project payment from the affiliated unit in the case of the affiliated party.
Viewpoint 2: The caller has the right to directly claim the project payment to the contractor.
[Case Name] Cui Jianchun and Jiangsu Xinshihang Construction Engineering Co., Ltd. and Jiangsu Longteng Cable Co., Ltd.
[Case Index] Jiangsu Provincial Higher People's Court (2016) Su Min Zhong Zi 46 Civil Judgment
[referee reason]
The Court believes that Cui Jianchun's undertaking of the project involved is a typical anchor construction activity, and the parties will not deny it. The person who was affiliated with Xinshihang Company violated the mandatory provisions of the law and loaned the qualifications to the individual Cui Jianchun to undertake the project, which should be responsible for the quality of the construction work undertaken by Cui Jianchun. The claimant’s claim to the contractor for the project is due to the contractor’s acceptance of the work of the caller’s work, resulting in an obligation to pay accordingly. However, there is no factual or legal basis for the attorney to ask the person to be contacted to bear joint and several liability for the payment of the project payment by the contractor. In this case, from the "Inner Internal Responsibility Letter" signed by Xinshihang Company and Cui Jianchun, the essence is to achieve the purpose of borrowing construction qualification through internal contracting. In fact, Cui Jianchun has independently contracted the contracted project. Self-financing. The relationship between Xinshihang Company and Cui Jianchun is not the relationship of subcontracting or illegal subcontracting, but Cui Jianchun borrows the construction qualification of Xinshihang Company to carry out illegal construction. It belongs to the typical anchor relationship, so the original judgment judged Xinshihang Company to Longteng The company owes Cui Jianchun's project payment joint and several liability, lacking facts and legal basis, and should be corrected.
[Lawyer analysis]
The author believes that after the contract is invalid, the party's claim is based on the provisions of Article 58 of the Contract Law of the People's Republic of China. After the contract is invalid or revoked, the property acquired by the contract shall be returned; it cannot be returned or not. If it is necessary to return it, it shall be compensated at a discount. The party that is at fault shall compensate the other party for the losses suffered by the other party. If both parties are at fault, they shall bear corresponding responsibilities respectively.". The theoretical basis for the viewpoint that “the person being called to claim the project money from the contractor” is the “principle of contractual relativity”, but the premise of the principle of “relative principle of contract” should be “contract effective”, and it is not applicable if the contract is invalid. There is room for it. The person who is affiliated is the actual construction person, and the construction of the project is carried out by the person who is affiliated. The person who is the person who is affiliated does not have any input. Therefore, after the contract is invalid, the contractor will benefit from the construction of the project, and the person to be affiliated has no loss, and naturally has no right. The contractor is required to compensate for the discount (that is, claiming the project); and the caller is damaged because the construction cannot be returned, so the caller should ask the contractor to compensate the discount (that is, claim the project).
Different judgments in the same case, the judicial decisions are confusing, and the judicial authority is seriously damaged. The author strongly appeals to the Supreme People's Court to issue relevant judicial interpretations as soon as possible, and to apply the uniform laws.
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