Real estate perspective: can the construction team claim the project cost or labor cost from the employer?

Published:

2022-07-04

Presentation of 1. issues In the judgment documents, the concept of "construction team" is often mentioned, and it is often combined with "actual constructors", "contractors" and "migrant workers. "Actual builder" refers to the contractor of invalid construction project construction contract, I .e. the contractor of illegal professional project subcontracting and labor operation subcontracting contract, sub-contractor and qualified constructors (affiliated constructors); The non-professional term "contractor" refers to the individual contractor who does not have the qualification of the main body of employment, who obtains the project through subcontracting and illegal subcontracting, and illegally solicits migrant workers for labor operations, pay labor remuneration to migrant workers, so as to form the smallest organizational unit in project management-"construction team" with migrant workers ". As mentioned above, the "construction team" and the contractor are at least separated by the "contractor", "actual builder" and "construction general contractor. Then, whether the "construction team" has the right to claim the project price or labor cost to the employer? If so, what is the basis for its claim? This paper intends to analyze the view of judicial judgment. 2. view of judicial adjudication There are generally three views on whether the construction team should be supported to claim the project price or labor cost from the contractor in judicial practice: first, the construction team does not belong to the actual builder in the legal sense, and has no right to require the contractor to bear the responsibility within the scope of the construction project price arrears according to the provisions of Article 43 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Construction Contract Disputes (I) 2020 No; second, the construction team has no right to require the employer to advance the arrears of migrant workers' wages within the scope of the arrears of project funds in accordance with the provisions of Article 29 of the regulations on ensuring the payment of migrant workers' wages; third, the construction team has the right to require the employer to advance the arrears of migrant workers' wages within the scope of the arrears of project funds. The specific views of the referee are as follows: (I) construction team does not belong to the actual construction person in the legal sense, does not enjoy the right to break through the relativity of the contract, and requires the contractor to bear the responsibility within the scope of the price of the construction project. For example, (2019) Supreme Famin Shen No. 5594 Judgment holds that:… Peng Yunrui is the actual builder of Huai'an Mingfa Commercial Plaza project;… Le Dianping is the head of the mud team in the C block project of Huai'an Mingfa Commercial Plaza contracted by Peng Yunrui… The relationship between Le Dianping and Peng Yunrui is the labor legal relationship, and Le Dianping (team) is the personnel employed by Peng Yunrui to engage in mud labor service, not the actual construction person in the legal sense mentioned above, ...... Le Dianping requested Huai'an Mingfa Company, the contractor of the project involved in the case, to assume the liability for payment within the scope of the project payment owed on the grounds of Article 26 of the judicial interpretation, which lacked the corresponding factual basis and legal basis. For example, (2022) Lu 14 Min Zhong No. 263 Judgment holds that: ...... The actual construction party shall not include the labor operation contractor. In this case, the "Construction Contract" signed by the employer Jinming Wucheng Branch and Guoji Dezhou Branch is legal and valid. As the contractor, Guoji Dezhou Branch signed the "Labor Contract" with Senmao Company. As the labor contractor, Senmao Company hired Liu Jihai to engage in carpentry labor. Therefore, Liu Jihai was not the actual constructor of the project, ...... The case should be a labor contract dispute, not a construction contract dispute. Liu Jihai has no right to break through the relativity of the contract and claim the project payment from the contractor and the general contractor involved. (II) construction team has no right to require the employer to advance the arrears of migrant workers' wages within the scope of the unpaid project price in accordance with the regulations on ensuring the payment of migrant workers' wages. For example, (2021) Qing 01 Minzong No. 2341 Judgment holds that: The Internal Team Contract Agreement signed between Beijing Huaji Shengde Company and Zhang Jiazhi is a labor contract... Zhang Jiazhi's labor payment should be paid by the opposite party of the contract, Beijing Huaji Shengde Company. Beijing Huaji Shengde Company now requests Jiangsu Construction Engineering Group Co., Ltd. and Xining Hongxing Meikailong Company to pay Zhang Jiazhi's labor service fee on the grounds that Jiangsu Construction Engineering Group Co., Ltd. owes its project payment. The appeal reason is groundless, and the hospital does not support it. (III) in principle, the construction team has the right to require the contractor to advance the arrears of migrant workers' wages within the scope of the arrears of the project funds in accordance with the provisions of the Regulations on Guaranteeing the Payment of Migrant Workers' Wages. However, in terms of the allocation of the burden of proof, judicial decisions are different. 1. The construction team shall bear the burden of proof on the causal relationship between the fact that "the contractor did not allocate the project funds in time in accordance with the contract" and the result of "wage arrears of migrant workers. For example, (2021) Lu 02 Minzong No. 15249 Judgment holds that Xin Wei did not submit valid evidence to prove that Sunac Company in this case complies with the provisions of Article 29, paragraph 2, of the Regulations on Guaranteeing the Payment of Migrant Workers' Wages, which states that Sunac Company, as a construction unit, should advance the wages of migrant workers, the joint and several liability for the payment of labor costs and interest is not accepted by the Court on insufficient basis. Xin Wei is a labor team member, not a construction or labor company, regardless of whether there is illegal subcontracting or subcontracting of the project involved, Sunac does not meet the statutory circumstances that should bear joint and several payment liability. For example, (2021) E 05 Min Zhong No. 3489 Judgment holds that: Article 29, paragraph 2, of the State Council's Regulations on Guaranteeing the Payment of Migrant Workers' Wages, which came into effect on May 1, 2020, stipulates: "If the construction unit fails to timely allocate the project funds in accordance with the contract, the construction unit shall advance the arrears of migrant workers' wages within the limit of the outstanding project funds." Therefore, the application of Article 26 of the interpretation of the Supreme People's Court on the application of legal issues in the trial of construction contract disputes breaks through the relativity of the contract, which is that the construction unit fails to timely allocate the project funds in accordance with the contract, resulting in the arrears of migrant workers' wages. In this case, the construction unit Yichang Housing Investment Company has paid 90% of the total project price to the general contractor, China Construction Third Bureau, that is, about 0.3 billion. The general contractor, China Construction Third Bureau, has paid 12.84 million yuan to the illegal subcontractor Zhongzhi Xincheng Company. The reason why China Construction Third Bureau has not paid the remaining project price to Zhongzhi Xincheng Company is due to court co-operation and quality assurance problems. Therefore, there is no case in this case that Zhongzhi Xincheng Company did not pay Xu Yangtao for the project due to the construction unit Yichang Housing Investment Company. Based on the principle that the people's court should adhere to the principle of equal protection for all parties in the construction industry, while protecting the interests of Baotou workers and migrant workers, it should not harm the legitimate rights and interests of qualified construction enterprises and contractors, ...... The court of first instance did not find that Yichang Housing Investment Company was responsible for the debts owed by Zhongzhi Xincheng Company within the scope of the construction project price. 2, in the case of the contractor and the construction general contractor has not yet settled, the construction team advocates that the contractor to the outstanding project funds as the limit of advance payment of the arrears of migrant workers wages conditions will not be achieved. (The following part of the case is the actual construction of the contractor to require the contractor to bear the responsibility within the scope of the project payment, can refer to the applicable). For example, (2021) the Supreme People's Court ruled No. 339 that Li Haijun and Cui Youliang advocated that Zhongfa Source Company should bear the responsibility within the scope of the outstanding project funds. ... The case involving Times Square was not completed, and the settlement between China Development Source Company and Huangwatai Company was not made, so we could only confirm the fact that Huangwatai Company and Huangwatai Qinghai Branch Company owed Li Haijun and Cui Youliang project funds. Whether Zhongfa Source Company owes Huangwatai Company and Huangwatai Qinghai Branch the project funds, the amount of the project funds owed and other facts cannot be found out due to unsettled accounts, and the rights and obligations between the actual constructor and the employer are not clear. Therefore, Li Haijun and Cui Youliang claimed to Zhongfa Source Company that the conditions for them to assume responsibility within the scope of the project funds owed were not fulfilled. For example, (2021) Liao 03 Min Zhong No. 4477 Judgment holds that Haicheng Huayuan Company (the employer) has not made effective settlement with the qualified subject, so it is not clear whether the employer has determined the amount of outstanding project funds in this case, and the audit and settlement of project funds between Haicheng Huayuan Company and Liu Fangping or other qualified subjects has not been carried out at present, and the settlement may involve legal relations between other subjects, therefore, in this case, it is not possible to determine whether the contracting party still owes the project funds. Therefore, the court of first instance rejected Qu Mingguo's claim that the contracting party should bear the responsibility for payment within the scope of the project funds not paid. It is not improper for Qu Mingguo to file a separate lawsuit after the settlement of the project involved in the case. For example, (2021) Lu 0113 Minchu No. 3673 judgment held that: Ma Zhanfeng claimed that the project involved was contracted by Panghui Company to Chengda Company, so according to the relevant provisions of the Regulations on Guaranteeing Wage Payment for Migrant Workers, Panghui Company should pay labor fees to it. In response, the court believes that since neither Panghui Company nor Chengda Company took part in the lawsuit, it is impossible to find out whether Panghui Company failed to pay the project funds to Chengda Company as promised, and Ma Zhanfeng clearly indicated that it was employed by Chengda Company and Chengda Company settled with it. Therefore, the court does not support Ma Zhanfeng's request to order Panghui Company to pay its labor costs. 3, in the case of the contractor and the construction general contractor has not yet settled, the contractor shall bear the burden of proof on the "settled project funds", otherwise, the construction team has the right to require the contractor to advance the outstanding project funds to advance the wages of migrant workers in arrears. For example, (2021) Yue 20 Min Zhong No. 9286 Judgment holds that the second paragraph of Article 29 of the Regulations on Guaranteeing the Payment of Wages for Migrant Workers stipulates that if the wages of migrant workers are in arrears due to the failure of the construction unit to allocate the project funds in time in accordance with the contract, the construction unit shall advance the wages of migrant workers in arrears to the extent of the outstanding project funds; ...... In this case, Southern Grid Energy Company confirms that it has not settled with the general contractor, nor has it provided evidence to prove that the project payment has been settled. According to the second paragraph of Article 29 of the above-mentioned regulations, China Southern Power Grid Energy Company shall be responsible for the advance payment of Chen Zhipeng's labor remuneration within the scope of the outstanding project payment of Zoomlinda Company; For example, (2021) Liao 10 Min Zhong No. 2036 Judgment holds that the construction unit shall allocate the project funds in a timely manner in accordance with the agreement and pay the workers' expenses in full and on time. If the construction unit fails to allocate the project funds in time as agreed in the contract, resulting in the wages of migrant workers in arrears, the construction unit shall advance the wages of migrant workers in arrears to the extent of the outstanding project funds. There is no dispute between the appellant and the appellee Longxin Company that the project payment has not been settled. At the same time, the dispute is in another lawsuit. The court of first instance found that the project payment owed by Shangda Company exceeded the wages claimed by 41 people such as Zheng Chengwei, so it ordered Shangda Company to bear joint and several liability for the workers' wages. If this fact is found to conflict with another case, both parties can resolve the dispute in this case separately. The scope of joint and several liability of Shangda Company shall be limited to the outstanding project funds. 3. legal analysis According to the provisions of laws, administrative regulations and judicial interpretations, combined with the rules of judgment of similar cases in judicial practice, the following legal analysis is carried out on whether the construction team has the right to claim rights against the contractor, or, as far as the contractor is concerned, how to avoid its responsibility to the construction team that it has never contacted: 1, the construction team to the contractor to claim rights, contrary to the principle of fairness, should not become judicial guidance. The construction team is not the subject of the contract under the construction project contract dispute, not the actual construction person, not the scope that should be considered in civil and commercial cases, and its interest protection should belong to the functional category of the administrative construction department, and in practice, the wage deposit system, bank guarantee system and labor supervision system of migrant workers have all become the channels to safeguard their legitimate rights and interests. From the contractor's point of view, if the provisions of the regulations on the protection of migrant workers' wages allow the construction team to file a lawsuit against it, the contractor is often inexplicably sued, followed by property preservation. This is extremely unfair to the contractor. The employer needs to spend a lot of litigation energy, prove in numerous cases that he no longer has project arrears, or realize account unsealing through property replacement to maintain normal operation, which actually makes him in a kind of insecurity: on the one hand, he does not know when he will be sued and sealed up again; On the other hand, I don't know why the contractor didn't pay the project payment in full to the downstream subcontracting teams and teams. In addition, in practice, there are also contractors or subcontractors due to poor management, unable to pay the actual construction of the project, team wages, will negotiate fictitious claims, false litigation, etc., thereby harming the rights and interests of the contractor. 2, the construction team has no right to require the contractor to pay the project. According to the provisions of Article 43 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Disputes over Construction Contracts of Construction Projects, (I) the Interpretation of the Supreme People's Court [2020] No. 25, the main body that requires the employer to bear the responsibility within the scope of the unpaid construction project price is only the "actual constructor". However, Article 7 of the "Answers to Several Questions of the First Civil Court of Shandong Higher People's Court on the Trial of Construction Project on the Trial of Construction Contract, the construction team does not belong to the actual construction person in the legal sense. Therefore, the construction team has no right to file a dispute over the construction contract and require the contractor to pay the project money to it. 3. The construction team requires the contractor to advance the wages of migrant workers who are owed in advance, and should bear a greater burden of proof, and should be strictly controlled in judicial practice. First of all, the construction team shall bear the burden of proof for the direct causal relationship between "the employer fails to allocate the project funds in time according to the contract" and "the wage arrears of migrant workers"; and the determination of whether there is a "causal relationship" can be comprehensively considered from factors such as the employer's payment amount, payment proportion, labor cost proportion, and non-payment reasons, it is not simply and roughly determined that the contractor should bear the responsibility of "advance payment" as long as there is the fact of "arrears of project payment" and the fact of "arrears of migrant workers' wages; Secondly, in the case that the employer and the general construction contractor have not yet settled the account, since the employer cannot find out the facts such as whether the employer owes the project payment and the amount owed, in order to avoid infringing on the rights and interests of other subjects and not to avoid litigation, it should be determined that the conditions for the construction team to require the employer to assume the responsibility for advance payment within the scope of the project payment are not fulfilled; Third, in the case that the employer and the general construction contractor have not yet settled the settlement, as long as the employer reasonably explains that the settlement has not yet been made for the purpose of delay, and can prove that it does not owe the progress payment at present, such as providing monthly progress statements, payment vouchers, etc., it should be determined that it does not owe the project payment and does not need to bear the responsibility of "advance payment. 4. epilogue The Regulations on Guaranteeing the Payment of Migrant Workers' Wages stipulate that the employer shall advance the arrears of migrant workers' wages within the limit of the outstanding project payment. This clause has caused the employer to be innocent and involved in the lawsuit, and the judicial practice is different, and it has also been criticized by the theoretical circle. The only basis for its existence lies in the position of "special protection of the interests of migrant workers"; with the increasing improvement and improvement of the protection system for the interests of migrant workers, construction teams have not used this clause as a "shield" for a long time. As far as the contractor is concerned, although the "involved in the lawsuit" is indeed "innocent", once the lawsuit is involved, if you want to get out, the effort is still routine, such as timely and sufficient labor costs.

Key words:

Project funds, companies, construction, contractors, teams, wages, farmers, payments, arrears.