170 Brief introduction: In the case of dispute over construction contract between the actual constructor Xiao and the defendant contracting company, the contracting company Guangzhou Branch, and the third party contracting company, a high court of the first instance made a civil judgment on November 1, 2013.
The employer shall only be responsible for the actual constructor within the scope of the unpaid project.”.
If the actual constructor claims rights against the employer, the people’s court may add subcontractors and illegal subcontractors as the parties to the case.
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The Employer shall be liable to the actual constructor within the scope of the unpaid project price, which shall be based on the settlement of the project price between the Employer and the Contractor.
It is not improper for the court of first instance to dismiss the lawsuit filed by the actual constructor and the court of second instance to dismiss the appeal filed by the actual constructor.
According to the provisions of the construction contract involved in the case, this fact can only be solved through arbitration.
[Method analysis] In the construction project, can the actual constructor, subcontractor or illegal subcontractor apply to the arbitration commission for arbitration according to the arbitration clause in the construction contract signed by the Employer and the Contractor? At present, in judicial practice, there is no unified conclusion on whether the actual construction personnel are bound by the arbitration clauses of both parties.
The third party contract issuing company raised objection to the jurisdiction during the defense.
The Supreme Court holds that Article 26 of the Interpretation of the Supreme People’s Court on the Application of Law to the Trial of Disputes over Construction Contracts of Construction Projects stipulates that: “If the actual constructor brings a lawsuit against the subcontractor or illegal subcontractor, the people’s court shall accept it according to law.
The contract letting company said that the reason why Xiao’s claim against him should not be accepted was justified, and that Xiao’s lawsuit against the contract letting company should be rejected.
Therefore, the actual constructor can apply to the arbitration commission for arbitration according to the arbitration agreement between the Employer and the Contractor, but can only claim the part of the Employer’s responsibility within the scope of the project payment.
On May 5, 2018, the construction company and the actual constructor signed the Internal Contract Agreement of the Project involved, which agreed that the construction company would contract the project involved to the actual constructor.
The employer shall be responsible for the actual constructor only to the extent of the project price owed.” According to the above laws and regulations, under normal circumstances, if the actual constructor claims that the employer is responsible within the scope of the unpaid project price with the employer as the defendant, the people’s court shall accept it.
The appellant Xiao filed a lawsuit against the contracting company as the actual constructor of the project involved according to the above provisions..
Most of the opinions hold that the actual constructor must claim the rights from the Employer on the premise that the Employer owes the project funds.
The determination of the above facts has been excluded from the jurisdiction of the people’s court by arbitration clauses.
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Arbitration clauses are stipulated in the Construction Contract of Construction Project and the Internal Contract Agreement of the Project involved.
The Supreme Court made a civil ruling on December 6, 2014, rescinding the original judgment and sending it back to a high court for retrial.
The project involved in this case was contracted by the contracting company to the contracting company Guangzhou Branch for construction.
If the actual constructor sued the Employer, it should be bound by the arbitration clause.
If the actual constructor is allowed to directly sue the contract letting company to claim the unpaid project funds, the court will have procedural obstacles in finding out the facts, Moreover, it may lead to the risk of contradiction in handling results due to the inconsistency between arbitration and litigation.
The Supreme Court holds that Article 26 of the Interpretation of the Supreme People’s Court on the Application of Law to the Trial of Disputes over Construction Contracts of Construction Projects stipulates that: “If the actual constructor brings a lawsuit against the subcontractor or illegal subcontractor, the people’s court shall accept the lawsuit according to law.
The contracting company Guangzhou Branch subcontracted to Xiao, who was the actual constructor.
1073 Brief introduction: On December 22, 2017, the municipal company and the construction company signed the Construction Contract for Construction Projects, which agreed that the municipal company would contract the project involved to the construction company.
In the agreement signed between the contract letting company and the contracting company, there is a clear arbitration clause.
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After examination, the Provincial Higher People’s Court held that the plaintiff Xiao was involved in the construction of the disputed project because he had signed a contract with the contracting company Guangzhou Branch, and he had no direct contractual relationship with the third-party contracting company.
With regard to the added claims of Xiao, the contract issuing company believed that the third party contract issuing company had no contractual relationship with the plaintiff Xiao, and that an effective ruling had confirmed and rejected Xiao’s lawsuit against the contract issuing company.
The basic legal relationship of this case is that the municipal company and the construction company signed the Construction Contract for Construction Projects and the construction company and the actual constructor signed the Internal Contract Agreement for Projects Involved in the Case, so the actual constructor should be bound by the arbitration clause.
The court of Xiao’s lawsuit against the third party and the contractor’s counterclaim should not accept it.
If the actual constructor claims rights against the employer as the defendant, the people’s court may add the subcontractor or illegal subcontractor as the party to the case.
However, the special feature of this case is that the municipal company and the construction company, as well as the construction company and the actual construction company have agreed on arbitration clauses, which exclude the jurisdiction of the people’s court.
Xiao disagreed and appealed to the Supreme People’s Court.
After the acceptance of the court, Xiao added a lawsuit request for the change of the contract issuing company.
The defendant contractor filed a counterclaim.
Xiao refused to accept the above civil ruling and appealed to the Supreme Court.
The settlement of project funds between the contract letting company and the contracting company is a fact that the court must find out.
The third party of the disputed project has an arbitration agreement with the contractor, and the arbitration award has taken effect.
[Analysis rules] The arbitration clause was agreed between the Employer and the Contractor.
