In just two sentences, there are many controversies and different understandings in judicial practice. In this paper, four cases of construction contract disputes involving Article 26 of the Interpretation, which were tried and revised by the Supreme People's Court, were searched to deepen the understanding and application of Article 26 of the Interpretation, hoping to provide some reference for legal experts in the field of construction engineering.
Revised rules:
Article 26 of the Interpretation does not rule out the possibility that the employees of the company are the actual constructors. Just because the plaintiff is an employee of the contractor, it is not enough for the employer to claim that the plaintiff is not the actual construction party. However, if the actual constructor claims that the employer shall bear joint and several liability for payment, it shall be bound by the arbitration clause between the employer and the subcontractor, unless the actual constructor only sues the subcontractor.
Brief introduction of the case
China Communications Second Bureau (the general contractor) signed a labor cooperation agreement with Longhang Company (the subcontractor), which stipulated the arbitration jurisdiction. Longhang Company subcontracted the project to Yang (the actual builder), but there was no arbitration agreement. Fu Yang sued China Communications Second Bureau and Longhang Company for payment of unpaid project funds, but Fu Yang was not the actual constructor of this case, and there was an arbitration clause in the labor cooperation agreement signed between China Communications Second Bureau and Longhang Company.
In the second instance, the Henan Provincial High Court held that
Although there is an arbitration clause in the labor cooperation agreement signed between China Communications Second Bureau and Longhang Company, Fu Yang is not a party to the agreement and is not bound by the arbitration clause in the agreement.
The Supreme People's Court retrial, think
2. The personal insurance certificate of Fu Yang provided by China Communications Second Bureau and two copies of evidence that Fu Yang received training as a project manager at the year-end summary meeting of Longhang Company, which prove that Fu Yang is an employee of Longhang Company and not the actual constructor of this case. Article 26 of the Interpretation does not specifically define the identity of the actual constructor. Therefore, Fuyang cannot be ruled out as an employee of Longhang Company. However, this provision not only clarifies that the actual constructor has the right to sue the employer, the subcontractor and the illegal subcontractor, but also limits the rights of the actual constructor, that is, the employer is only responsible for the actual constructor within the scope of unpaid project price. It can be seen that even if Fu Yang is recognized as the actual constructor, his rights to CCCC Second Bureau are limited to those enjoyed by Longhang Company. In view of the subrogation nature of Fu Yang's claim against the Second Bureau, the relationship between Fu Yang and the Second Bureau is inherited from the legal relationship between Longhang Company, CCCC Second Bureau and Project Management Department. Therefore, no matter whether Fu Yang is the actual construction party or not, as long as Fu Yang sues CCCC Second Bureau, he must be bound by the arbitration clause in the labor cooperation agreement between the project management department and Longhang Company, and Fu Yang has no right to unilaterally change the arbitration clause. However, if Fu Yang only sues Long Xing company, he may not be bound by the arbitration clause.
Case index
CCCC second highway engineering bureau co., ltd v Luoyang longhang construction labor service co., ltd, CCCC second highway engineering bureau co., ltd, and Fuyang, the project manager department of the 23rd contract section of Xishang expressway, civil ruling on retrial of jurisdiction objection of construction contract dispute.
The Supreme People's Court (20 13) Min Ti ZiNo. 148
Revised rules:
The principle of contract relativity is the basic principle to deal with contract disputes. In the absence of evidence to prove that the Employer, the Subcontractor and the actual constructor have reached an agreement on the transfer of creditor's rights and debts, the Subcontractor is still the subject of payment obligation of the subcontract, and the Subcontractor refuses to pay the project payment on the grounds that the actual constructor and the Employer have formed a de facto contractual relationship, and does not support it.
In the second instance, the Liaoning Provincial High Court held that
Although Kaicheng Company (the employer) did not directly sign the relevant construction contract with Huayang Company (the actual constructor), during the performance of the general contract, it directly received the construction results delivered by the subcontractor Huayang Company, directly settled the project payment with Huayang Company, and directly paid part of the project payment to Huayang Company before and after the settlement, so it can be concluded that it directly formed a construction contract relationship with Huayang Company during the construction of the project involved. During the performance of the contract, Huayang Company neither delivered the construction results to Sheng Da Company (subcontractor) nor settled the project price with Sheng Da Company, but directly formed a construction contract relationship with Kaicheng Company, so its claim for Sheng Da Company to pay the remaining project price was not supported. The first-instance judgment ordered Sheng Da Company (subcontractor) to pay Huayang Company (actual construction party) the remaining project price improperly and correct it.
The Supreme People's Court retrial, think
The principle of privity of contract is the basic principle to deal with contract disputes and should be followed. The first paragraph of Article 26 of the Interpretation clearly stipulates that the people's court shall accept the lawsuit brought by the actual constructor against the subcontractor or the illegal subcontractor according to law. In this case, although Huayang Company directly delivered the project involved to Kaicheng Company, the employer, and received part of the project payment from Kaicheng Company, the Project Construction Management Agreement of China Petroleum Geely Street Area B signed with Sheng Da Company was not released, and Sheng Da Company, as a party involved in the contract, was still bound by the contract. According to the ascertained facts, on September 10, 2009, Sheng Da Company issued a completion acceptance report to the construction unit Kaicheng Company in its name, which showed that Sheng Da Company had been actually fulfilling its corresponding contractual obligations, and Sheng Da Company did not provide sufficient evidence to prove that the three parties had reached an agreement on debt transfer. Therefore, Shengda Company is still the project payment obligor under the contract involved. It cannot be regarded as the fact that Huayang Company delivered the project to Kaicheng Company and accepted part of the project payment. The original judgment found that Huayang Company directly formed a construction contract relationship with Kaicheng Company, thereby exempting Sheng Da Company, the counterpart of the contract, from the obligation to pay the project payment. There is no factual and legal basis, and this court will correct it. Although the contract signed between Huayang Company and Sheng Da Company is invalid, Sheng Da Company, as a party to the contract, should also bear corresponding civil liabilities for the invalid contract.
Case index
Shenyang Kaicheng Housing Development Co., Ltd. v. Dalian Huayang Construction Engineering Co., Ltd. and Dalian Shengda Kejian Group Co., Ltd. Civil Judgment on Retrial of Construction Contract Disputes.
The Supreme People's Court Xin (20 13) Min Ti ZiNo. 156
Revised rules:
Article 26 of the Interpretation does not prohibit the Employer and the Subcontractor from offsetting each other's debts. If the actual constructor requires the employer to bear joint and several liability for payment, the employer has the right to claim to offset the mutual debts between him and the subcontractor.
Brief introduction of the case
The actual constructors (Zhang Liwei and Yan Jixiu) sued the subcontractor (Yixing Company) for payment of the project funds, and the employer (Guangqi Company) assumed joint liability within the scope of payment of the subcontractor's project funds. In another lawsuit, the employer and subcontractor have ordered the subcontractor to pay 4.45 million compensation to the employer. The focus of the dispute involved in this case is whether the 4,457,776.9 yuan that Yixing Company should pay to Guangqi Company as determined in Judgment No.299 can be offset by the project payment owed by Guangqi Company to Yixing Company.
In the second instance, the Anhui Provincial High Court held that
Although the civil judgment of the previous case ruled that Yixing Company was liable for damages of 4,457,776.9 yuan, it was not clear that the loss was caused by the constructor's failure to carry out the construction according to the design scheme, nor was it clear that it was caused by the unqualified quality of the project involved. And the loss is the loss of adjacent civil rights and interests caused by the construction of the project involved, which belongs to the dispute of damages, and does not belong to the same legal relationship with the construction contract dispute of the construction project in this case. In the case that the actual builders Zhang Liwei and Yan Jixiu did not participate in the judgment lawsuit No.299, the creditor's rights and debts not caused by the same legal relationship were partially offset, which did not conform to the provisions of Article 26 of the judicial interpretation and harmed the interests of the actual builders. And judgment No.299 has confirmed that Yixing Company will compensate Guangqi Company. Even if the compensation is ultimately borne by the actual constructors Zhang Liwei and Yan Jixiu, it is also a matter of Yixing Company's recovery. Therefore, Guangqi Company's claim that the above-mentioned loss of 4,457,776.9 yuan should be deducted from the arrears of the project involved is not fully based, and the court of second instance does not support it.
The Supreme People's Court retrial and change the sentence and think
Article 99 of the Contract Law stipulates that "if the parties owe each other debts due, and the subject matter of the debts is of the same type and quality, either party may offset its debts with the debts of the other party, except that it is not allowed to offset according to the law or the nature of the contract. If a party claims set-off, it shall notify the other party. The notice takes effect when it reaches the other party. Offset should not be conditional or time-limited. " This article does not stipulate that offsetting debts should be based on the same legal relationship. Judgment No.299 has determined that Yixing Company should pay compensation of 4,457,776.9 yuan to Guangqi Company, which belongs to the monetary debt arising from the project construction involved. In this case, the project payment advocated by Zhang Liwei and Yan Jixiu is also a monetary debt. The subject matter of the two debts is the same in kind and nature, and neither is an offset debt according to the law or the nature of the contract. In this case, before Zhang Liwei and Yan Jixiu filed a lawsuit, during the execution of judgment No.299, Yixing Company offset its debts owed by Guangqi Company with its debts owed by Guangqi Company, which was in compliance with the law and Guangqi Company agreed to offset. The first paragraph of article 26 of the judicial interpretation does not prohibit the employer and the subcontractor from offsetting each other's debts. In this case, Guangqi Company claims that the offset of RMB 4,457,776.9 should be deducted when calculating the unpaid project amount. This offset has both legal basis and contractual basis. The judgment of the second instance has not been offset, which belongs to the applicable law, and there is indeed an error, which our court will correct.
Case index
Civil judgment on retrial of construction contract disputes between Bozhou Guangzhou Automobile Real Estate Co., Ltd. and Yixing Construction Engineering Construction and Installation Co., Ltd.
The Supreme People's Court Liu Chongli (20 17) People's Republic of China (PRC) Supreme Law No.274
Revised rules:
Although Article 26 of the Interpretation gives the actual constructor the right to bring a lawsuit to the employer on the grounds of breaking through the relativity of the contract, it does not exclude or restrict the right of the contractor (affiliated unit) stipulated in the contract to bring a lawsuit to the employer on the condition that the construction is affiliated.
The Liaoning Provincial High Court of the Court of First Instance held that
The outsider Zhan is the actual builder of this case, and he belongs to Xinhua Company. Now Zhan is dead. The result of this case is directly related to Zhan's heirs, and it is necessary to wait for Zhan's heirs to indicate whether to inherit their rights and obligations. Xinhua Company, as the plaintiff in this case, is unqualified, and the lawsuit of Xinhua Company shall be rejected.
In the second instance, the Supreme People's Court changed his sentence and thought
Xinhua Company is the signatory and contractor of the construction contract and its supplementary agreement of Shenyang Jiarui Real Estate Phase II Project, and has the right to file a lawsuit on the construction contract dispute in this case according to the above-mentioned construction contract. Whether the outsider Zhan belongs to the actual construction of Xinhua Company belongs to the internal relationship between Xinhua Company and Zhan, which needs to be found out through entity trial. The court of first instance improperly determined the actual construction party of the project involved without trial. Even if there is a relationship between Zhan and Xinhua Company, based on the principle of relativity of contract, Xinhua Company has the right to sue the contractor company stipulated in the contract and demand it to return the project payment. Although the provisions of Article 26 of the judicial interpretation give the actual constructor the right to bring a lawsuit to the employer on the grounds of breaking through the relativity of the contract, this provision does not exclude or restrict the contractor's right to bring a lawsuit to the employer on the project payment agreed in the contract. Therefore, four years after accepting the case, the court of first instance ruled that Xinhua Company did not have the plaintiff qualification in this case, and ruled that the company's claim was rejected, which was unfounded in law and made serious mistakes, and our court corrected it according to law.
Case index
Hubei Xinhua Construction and Installation Engineering Co., Ltd. and Shenyang Jiarui Real Estate Co., Ltd. Civil ruling of second instance on construction contract dispute.
The Supreme People's Court (20 18) Supreme People's Court No.77.