On the main scope of the actual construction person and the distribution of the burden of proof when claiming the right to the contractor.

-- Understanding and application of Article 26 of the Interpretation on the Application of Law in the Trial of Construction Contract Disputes

【Abstract] The Supreme People's Court's "Interpretation on the Application of Law in the Trial of Construction Contract Disputes" has been issued, which provides a way out for the protection of the rights of the actual constructors. However, the scope of application of the actual constructors and how to define the actual constructors and how to allocate the burden of proof to the employer have been controversial in judicial practice, this paper discusses the scope of application, definition and how to allocate the burden of proof to the contractor, and puts forward the problem and confusion, in order to cause the majority of lawyers and judicial practitioners to pay attention to the problem again and study the solution.

[Key words] the actual construction of the concept of the scope of application of the burden of proof distribution problems and confusion

In order to regulate the construction market, my country's construction industry implements an access system and has a high entry threshold. The the People's Republic of China Construction Law clearly stipulates that construction enterprises engaged in construction activities must have a legal person business license and qualification certificate, and be within the scope of their qualification level. Engage in construction activities. However, in the field of construction, illegal subcontracting, illegal subcontracting and borrowing of qualifications are very common. Some projects have collapsed several times, resulting in the separation of nominal contractors and actual constructors. The actual constructors who finally take over can only get started. If their credit standing deteriorates, bankruptcy or subject qualification is eliminated, the actual constructors will often be unable to claim their rights and face the situation of "people and money being empty. In order to resolve the resulting disputes, the Supreme People's Court's "Interpretation on the Application of Law in the Trial of Construction Contract Disputes" (hereinafter referred to as the "Interpretation") clearly put forward the concept of actual construction person, and made a clear provision in Article 26. This provision has important practical significance for protecting the interests of actual construction people and ensuring social stability.

However, because the law does not clearly stipulate the concept of the actual construction person, the scope of application, and the burden of proof for the actual construction person to claim the right to the contractor, which has caused more disputes and problems. From the perspective of lawyer's judicial practice, the author discusses the scope of application of the actual construction person and the burden of proof when claiming the right to the contractor, and puts forward problems and puzzles, in order to cause the majority of lawyers and judicial practitioners to pay attention to the problem and study the solution.

1. the main scope of the actual construction

1. The contract law provides for the "construction person" on the basis of a valid contract ".

In order to accurately grasp the concept of "actual construction person" in the Interpretation, we should first compare and analyze the main concept of "construction person" in the the People's Republic of China Contract Law (hereinafter referred to as the Contract Law). The subjects related to the construction contract as stipulated in the chapter "Construction Contract" of the Contract Law include the contractor, the general contractor, the contractor, the third party, the subcontractor and the builder. The above-mentioned "construction person" includes all the construction subjects of the construction contract, the Contract Law, as a civil behavior law, has a normative and guiding role, does not take the illegal contract as the object of regulation, and does not carry out detailed coordination and configuration of the rights and obligations arising from the illegal invalid contract. Reviewing the relevant provisions in the chapter "Construction Contract" of the Contract Law, there are no provisions regulating the rights and obligations between the relevant parties arising from invalid construction contracts. It can be inferred that the "construction person" in the Contract Law should refer to the construction subject of the legal and effective construction project construction contract, including the general contractor, the contractor, the professional project contractor, and the labor operation subcontractor.

2. Scope of application of actual constructors

Article 4 of the "Interpretation" stipulates: "The contractor's illegal subcontracting, illegal subcontracting of construction projects, or unqualified constructors borrowing the name of a qualified construction enterprise to sign construction contracts with others is invalid..." Article 25 stipulates: "In the event of a dispute over the quality of a construction project, the employer may file a lawsuit for the general contractor, the subcontractor, and the actual builder as co-defendants." Article 26 stipulates: "If the actual builder sues the subcontractor or illegal subcontractor as the defendant, the people's court shall accept the case in accordance with the law. If the actual builder claims the rights of the contractor or illegal subcontractor as the defendant, the people's court may add the subcontractor or illegal subcontractor as a party to the case. The contractor shall only be liable to the actual builder within the scope of the unpaid project price." The above three provisions do not define "actual builder", we can infer that the "actual builder" referred to in the Interpretation refers to the subcontractor in the illegal subcontracting contract, the subcontractor in the illegal subcontracting contract and the contractor who signs the construction contract of the construction project by borrowing the qualifications and name of others. The "Understanding and Application of Judicial Interpretation of Construction Contracts for Construction Projects of the Supreme People's Court" compiled by the First Civil Division of the Supreme People's Court points out in the elaboration of the original legislative intent of Article 25: "The actual constructor expressed in this article refers to the contractor who subcontracts and subcontracts illegally. In order to distinguish the legal constructor stipulated in the Contract Law, this article uses the expression" actual constructor. There are three uses of the concept of 'actual constructor' in this interpretation ...... all refer to contractors with invalid contracts, such as subcontractors, contractors with illegal subcontracts, and contractors who are not qualified to sign construction contracts with others in the name of qualified construction enterprises ".

Through the above analysis, the author believes that the "actual constructors" covered by the Interpretation specifically include the following three categories: first, the contractor of the subcontract; second, the contractor of the illegal subcontract; and third, the contractor who is not qualified to sign the construction contract with others in the name of a qualified construction enterprise.

3. In judicial practice, it is also necessary to clarify whether "contractors" and "migrant workers" belong to "actual constructors"?

The "contractor" is responsible for contracting work and finding people to work. It is a special "product" under special historical conditions. According to the construction law, natural persons cannot constitute the main body of construction. The "contractor" contracts construction through affiliation, subcontracting, and illegal subcontracting. Construction tasks (including general contracting, professional contracting, and labor subcontracting) become "actual constructors". "Migrant workers" is a special social group that appears under the premise of my country's urban-rural dual system. It refers to "workers with agricultural hukou who are engaged in non-agricultural work in cities". Among the non-agricultural jobs that migrant workers do in cities, the construction industry has almost become the most important part. In fact, the actual construction person (often the "contractor") employs migrant workers to engage in specific engineering construction activities. The contractor becomes the actual construction person specified in the interpretation, but the migrant worker is not the "actual construction person". Article 26 of the "Interpretation" stipulates that under certain conditions, the actual construction person (contractor) is given the right to sue, so that he can claim rights from the contractor, which can indirectly protect the migrant workers to realize their labor income. However, this kind of protection belongs to indirect protection and does not give migrant workers the right to sue the contractor under certain conditions.

4. Analysis on the concept of actual construction person

Some scholars have tried to define the "actual construction person" as the contractor of the invalid construction contract in the relevant discussion. The author believes that this definition is incorrect. The reason is that Article 1 of the Interpretation stipulates: "If the construction contract of a construction project has one of the following circumstances, it shall be based onThe provisions of Item (V) of the Contract Law shall be deemed invalid: (1) the contractor has not obtained the qualification of a construction enterprise or has exceeded the qualification level; (II) the actual construction person without qualification borrows the name of a qualified construction enterprise; (III) the construction project must be tendered without tendering or the winning bid is invalid." However, Article 4 of the "Interpretation" stipulates: "The contractor's illegal subcontracting, illegal subcontracting of construction projects, or the act of an unqualified actual builder borrowing the name of a qualified construction enterprise to sign a construction contract with others is invalid." It does not include the (I) and (III) situations in Article 1 of the Interpretation. Therefore, the author believes that the "actual construction person" can not be purely defined as: invalid construction contract contractor, its definition, can only be expressed by listing. That is, the actual construction person refers to the contractor of the invalid transfer contract, the contractor of the illegal subcontract, and the contractor who does not have the qualification to borrow the name of the qualified construction enterprise to sign the construction contract with others.Article 52

2. how the burden of proof is allocated when the actual builder claims rights from the contractor.

The allocation of the burden of proof when the actual builder claims rights to the contractor has always been a difficult point in judicial practice.

One view is that the actual construction person should claim the right to the contractor, according to the "who claims, who gives evidence" rule of evidence, the actual construction person should bear the burden of proof. The basis of this theory is that the provisions of Article 26 of the Interpretation are an extension of the theory of subrogation of contract law. Article 73, paragraph 1, of China's Contract Law stipulates: "If the debtor neglects to exercise its due creditor's rights and causes damage to the creditor, the creditor may request the people's court to subrogate the debtor's claim in its own name, except that the claim belongs exclusively to the debtor itself. The scope of the exercise of the right of subrogation is limited to the creditor's claim. The necessary expenses for the creditor to exercise the right of subrogation shall be borne by the debtor." The Supreme People's Court on the Application<中华人民共和国合同法>Article 13 of the (I) for Interpretation of Certain Issues stipulates: "The debtor's delay in exercising its due creditor's rights and causing damage to creditors' stipulated in Article 73 of the Contract Law means that the debtor fails to perform its due debt to the creditor and does not claim its due creditor's rights with payment content from the debtor by means of litigation or arbitration, resulting in the failure of the creditor's due creditor's rights to be realized. If the sub-debtor (I. e. the debtor of the debtor) does not believe that the debtor has been idle in exercising its due claims, it shall bear the burden of proof." In a subrogation action, the sub-debtor denies its existence with the debtor, which is the normal defense of the sub-debtor as the contractor. Therefore, if the actual construction person claims the right to the contractor, the actual construction person shall prove the existence of the subcontractor or the illegal subcontractor's claim to the contractor.

Another view is that the burden of proof should be borne by the contractor, I .e. the contractor should prove that it has paid the project to the subcontractor or the illegal subcontractor. The theoretical basis is that, from the theory of the distribution of the burden of proof, in order to ensure that the distribution of the burden of proof reflects the fairness and justice of substantive law, the judge in the trial of the case to the parties to allocate the burden of proof, should be by possession or close to the evidence material, conditions or ability to collect evidence of the party to bear the burden of proof. In the construction of the construction project, since the actual builder only has the settlement materials and payment situation between the contractor and the contractor, and cannot have the payment situation between the employer and the contractor, especially in the case of several subcontracting or subcontracting of the project, the burden of proof is greater than and difficult for the employer, so from the perspective of protecting the interests of the actual builder and explaining the purpose set forth in Article 26, the employer shall bear the burden of proof.

The author believes that if we want to clearly analyze the burden of proof in the case of the actual construction person claiming rights to the employer, we should first consider the purpose of the formulation of the judicial interpretation. The formulation of Article 26 of the Interpretation has been discussed above to protect the rights and interests of the actual construction person and the majority of migrant workers. However, the actual construction person is often in a weak position in the construction contract disputes, the evidence it holds is often only the relevant information of its construction, and it is relatively difficult to order it to prove the payment of the employer to the subcontractor and the illegal subcontractor. Therefore, the original intention of the legislation is to give the actual builder the right of action to safeguard his rights, but the right of action should not be the right of action with more burden of proof, otherwise, the purpose of the law to protect the interests of the actual builder will be defeated. Therefore, from the analysis of the original intention of the legislation, the burden of proof for "the employer owes the project payment" lies in the employer's original intention of the legislation. Secondly, according to Article 75 of the Supreme People's Court's "Several Provisions on Evidence in Civil Proceedings": "If there is evidence to prove that one party holds evidence and refuses to provide it without justifiable reasons, it can be presumed that the claim is established." As long as the actual builder believes that the contractor owes the project payment in the lawsuit, the contractor needs to provide evidence to prove that it does not owe the project payment. Otherwise, because the contractor holds and grasps the payment situation between it and the subcontractor, illegal subcontractor or lender, if it does not provide, it meets the above provisions. The court can presume that the actual builder's claim is established and the contractor needs to bear the responsibility of ignoring it, therefore, it is more in line with judicial practice to clarify that the burden of proof is borne by the contractor. However, due to the unclear legislative provisions, judicial discretion standards are often inconsistent in practice. Therefore, it is recommended to further legislate to clarify the burden of proof of all parties, that is, the burden of proof shall be shared by both parties, the actual builder shall bear the burden of proof to prove that the contracted project has been completed on time and the quality is qualified, and the employer shall bear the burden of proof that it has paid all the project funds to the subcontractor or illegal subcontractor or lender.

3. problems and puzzles

Question and Confusion One: The Interpretation provides some effective relief channels for the rights and interests of the actual construction person, giving the actual construction person the claim of the right to the contractor, and can refer to the construction contract to require the payment of discount compensation. However, this kind of protection is only an indirect protection, and it cannot directly guarantee that the actual construction personnel will pay off the wages to the migrant workers after obtaining the arrears of the project payment. The problem of arrears of migrant workers' wages has increasingly become one of the serious social problems. The practical value can be imagined. It is suggested that the judicial interpretation should further study and formulate the provisions to protect the interests of migrant workers on the basis of the existing provisions.

Problem and Confusion 2: The Interpretation provides a way out for the actual construction activities engaged in by the actual construction workers, but after all, the actual construction workers are engaged in a construction relationship that is denied by the law. The regulation encourages construction enterprises to break the law in disguise, which is not beneficial to the construction market. In fact, it is further disrupting the already chaotic construction market. Now many "contractors" say: "With this regulation, it doesn't matter whether there is construction qualification or not, as long as the construction quality is guaranteed. Anyway, you have to pay for the work. Now that the qualification management is so strict, who will handle the qualifications." In view of this, it is suggested that the legislative department should study the problem of "actual constructors" again with the competent construction department, strictly manage the qualification in the construction field, put an end to the phenomenon of "actual constructors" emerging one after another, and even consider banning the existing regulations of "actual constructors", so as to realize the legal transformation from "actual constructors" to "constructors" and restore a good order in the construction market, achieve a fair and orderly competitive environment in society.

【References]]:

1. The People's Court of the Supreme People's Court, "The Understanding and Application of the Judicial Interpretation of the Construction Contract of the People's Court", People's Court Press, 2004.

2. Li Guoguang, Editor-in-Chief: The Supreme People's Court<关于民事诉讼证据的若干规定>Understanding and Application of ", China Legal Publishing House, 2002.

3. Xi Xiaoming, Editor-in-Chief: Analysis of Civil Cases of the Supreme People's Court, Law Press, 2010.

4. Ma Fengling: "On the Protection and Restriction of Actual Constructors-Also on Article 26 of Supreme Court Law Interpretation [2004] No. 14".

5. Li Min:"<关于审理建设工程施工合同纠纷案件适用法律问题的解释>Understanding and Application of Article 26.

6, Yin Shouli: "From a case on the contractor's payment responsibility to the actual builder".

7, Jiang Guangjun: "The actual construction of some difficult problems-to the Supreme People's Court."<关于审理建设工程施工合同纠纷案件适用法律问题的解释>The specific application of article 26 is the center.