" top people court builds case of dispute of engineering construction contract about cognizance the explanation of applicable law problem " regulation: "Person of the 26th actual construction wraps factitious the accused to sue with subcontractor, illegal cent, people court ought to be accepted lawfully.
Apply a worker actually to hold the right in order to send packet of factitious the accused, people court can increase subcontractor to perhaps violate minute of bag factitious this case party. The person that send a package is in only owe pay a project cost responsibility is assumed to actual construction person inside limits.
Should make clear above all " explanation " of the 26th regulation " actual construction person " how should limit. " explanation " share 4 to allude to use a worker actually, among them the first the 2nd regulation: "The actual construction person that does not have aptitude uses the name of building construction company that has aptitude, ought to according to contract law fiftieth 2 (5) regulation, maintain invalid. " the 4th regulation: "Project of construction of bag of illegal subcontract, illegal cent perhaps does not have the contractor the act that the actual construction person of aptitude uses the name of building construction company that has aptitude and other to sign contract of construction project construction is invalid. " the 25th regulation: "Because build what project quality produces controversy, the person that send a package is OK apply a worker actually to be corespondent to lodge a complaint with the total contractor, support of the people that distribute a packet. " the 26th regulation: "Actual construction person wraps factitious the accused to sue with subcontractor, illegal cent, people court ought to be accepted lawfully. Apply a worker actually to hold the right in order to send packet of factitious the accused, can increase subcontractor to perhaps violate minute of bag factitious this case party. The person that send a package is in only owe pay a project cost responsibility is assumed to actual construction person inside limits. The person that send a package is in only owe pay a project cost responsibility is assumed to actual construction person inside limits..
According to " explain " afore-mentioned regulations, at present relatively unanimous point of view thinks, actual construction person should be the contractor that points to contract of construction of invalid construction project, include to turn the contractor, contractor of illegal subcontracting, contractor that uses intelligence, hang rely on construction person, and do not include a contractor fulfill auxiliary person, lawful major to divide contractor of work of contractor Cheng contractor, service.
So applicable afore-mentioned judicatory explain the 26th provision, when actual construction person is sued as accuser, should deny get the limitation of certain condition?
The adjudgement opinion of top people court:
Tell from legal principle, the foundation of creditor's rights contract is contract relativity, the foundation that content counterpoises is pair of world power. Allow relativity of contract of breakthrough of first instance accuser holds the right to the party that does not have contract concern, be being told from legal principle and legal provision have certain drawback. " civil code general rule " the 84th regulation: Debt is the agreement according to the contract or legal regulation, the specific right that produces between party and obligation concern. The person that enjoys the right is creditor, beholden person is debtor. Creditor has the agreement of power demand debtor according to the contract or legal regulation fulfils obligation. That is to say, "Specific right and compulsory relation " arise between contract party, the relativity property that creditor's rights place has is the foundation that debt exists. Combine the drawback on the legal principle that brings with relativity to make up for a breakthrough, applicable " explain " the 26th the 2nd section provision is to suffer strict requirement to restrict.
Above all, for complete and accurate understanding " explain " the 26th the 2nd section provision, ought to combine this the 1st section provision to be unscrambled along with all the others, such ability are correct and only applicable this article. " explain " the 26th the 1st section provision: Actual construction person wraps factitious the accused to sue with subcontractor, illegal cent, people court ought to be accepted lawfully. On construction market, applying contract photograph of the worker actually to become a person is subcontractor perhaps violate the person that distribute a packet, the contract is between them opposite person. The contract comparatives to lodge a complaint is proper between the person, accord with " code of civil law " the case of the 108th regulation accepts a condition, need not make judicatory explanation give at all to this specific provision. " explanation " be in the 1st the 26th times in make arrangement to the content of beardless explanation, be in this the 1st give in the paragraph clear, its purpose depends on hinting various court in principle forbids to make party break through contract relativity to lodge a complaint, ought to according to contract relativity principle orderly lawsuit, this is the dominant lawsuit way that be good law provides. " explain " the 26th the 2nd section provision is to have strict and applicable requirement, it is the additional provision that makes to protect peasant industry interest, exist and deny the big principle of legal contract relativity what cannot set because of this. Next, applicable " explain " the 26th the 2nd fund plan is time, in principle is first-hand contract all subcontract of contract and helper all ought to disable. " contract law " , " building law " , " regulation of construction project quality " wait for law, code, the following concepts used when stating contractor concept: Person of company of construction of contractor, building, construction, contract the unit that builds a project, had not appeared " actual construction person " state. This is stated for " explanation " the new idea of activate, intention is real in conveying invalid contract the unit that work or the individual is actual construction person, actual construction person may be legal person, blame partnership of corporation, individual, natural person waits. Use " actual construction person " notional itself is meant " actual construction person " participate in signed contract to disable, actual construction person is invalid contract party, include to distribute a packet subcontract, illegally, use the structure that has aptitude without aptitude the lawbreaking, administrative regulations such as construction company name is mandatory illegal behavior of the regulation. The scholar thinks, after the contract is invalid, its relativity is changed infirmly. Applicable " explanation " one of the 26th the 2nd conditions are in principle construction always contract contract and all helper subcontract, illegal subcontracting all disables, such ability accord with relativity of creditor's rights contract to change a principle infirmly. If always contract the contract is active, according to contract law principle, active contract ought to fulfill; actually to send packet of person to be opposite only in active contract in the round the contract is had relative to the person fulfil obligation, to the person besides the contract not if not be,the burden fulfills compulsory; such, so the effectiveness of the contract is not complete, have drawback. Outside closing to remove burden contract obligation with opposite person, even the obligation beyond burden contract. This is inequitable party to the contract, when the autograph is made an appointment with, cannot expect, cannot ensure trade safe. Construction contract and other contract photograph are compared and character, have specialty. Special always contracting at subcontract, illegal subcontracting and begin the contract is compared and character, although belong to two independent law concerns, but embroil concern is had between them. Resemble subcontract and begin contract between, generally speaking, exist on project cost namely difference, other content, main like the contract such as standard of construction limits, quality, time limit for a project, responsibility of breach of contract provision all basic and as identical as begin contract. Subcontractor, illegal cent includes factitious begin and right-hand seat the party of two contracts, the is put after breaking through relativity for invalid contract processing plan of these features laid certain foundation. The 3rd, do not allow use name of actual construction person, with applicable " explanation " the 26th it is a name the 2nd times, mention to be the lawsuit of the accused in order to send packet of person or total contractor, ill will damages their legitimate rights and interests.
