Actual construction person (labor contractor) just allow below specific situation sue hair bag squar

One, case index

Highest courtyard " dispute rehear examines contract of construction of project of construction of institute of Xiao Jinan, salty in relief normal school to supervise civil ruling book with adjudgement " , record date (2018) top magic art civilian explain 120, the presiding judge barks the country is displayed, juridical date two years on January 31.

2, brief introduction of details of a case

Party: Send institute of packet of Fang Xianyang normal school, construction square in mansion construction is group limited company, medium branch of Xi'an of limited company of mansion construction group. Xiao Jinan and in branch of Xi'an of limited company of mansion construction group is signed " interior contracts agreement " , become independent internally construction, external with in construction of name of limited company of mansion construction group.

The focus of controversy: Whether comfortable check does institute of normal school of salty this world of Xiao Jinan appeal pay project money main body?

3, juridical summary

(one) the problem that regards the litigant main body of accuser as whether comfortable case about Xiao Jinan.

Xiao Jinan holds project money and interest to institute of salty in relief normal school, the department holds the debt of the contract, the debt lawsuit main body of the contract should be a principle with contract relativity, namely the contract is law produces between specific contract party cabined force, only contract party one party can be based on a contract to put forward request or to lodge a complaint to the other side. In this case, of case experience project " couplet of investment of edifice of science and technology of institute of salty in relief normal school proposes agreement " , " couplet of investment of edifice of science and technology of institute of Xian Yang normal school proposes agreement complement agreement " , " contract of construction project construction " reach " contract of construction of edifice of center of science and technology of institute of Xian Yang normal school complements clause. What Xiao Jinan offers is medium mansion builds group and institute of Xian Yang normal school to issue " confirmation " group of construction of the mansion in be being fastened only and institute of Xian Yang normal school are right Xiao Jinan and medium mansion Xi'an branch is signed, " confirmation " in the contract principal part that did not build agreement to investing couplet undertakes modificatory, contract party main body still is medium institute of normal school of He Xianyang of mansion construction group. Xiao Jinan shows litigant stand to ask institute of salty in relief normal school pays case experience project to equally shared, money of public share project and accrual loss, the one part of the cost of project of experience of construction agreement place that institute of normal school of He Xianyang of group of construction of the mansion in be being fastened as a result of money of this part project signs, and the Xiao Jinan in agreement of case experience construction is not contract one party to conclude a treaty party, its are fastened only external with in construction of name of mansion construction group, and in mansion is construction group, medium mansion Xi'an branch also thinks Xiao Jinan is not independent contract relatively square, have no right to sue. On put together, the Xiao Jinan in can holding this record and institute of salty in relief normal school do not have direct contract to concern, 2 careful ruling thinks Xiao Jinan serves as this case first instance to tell main body of bring a case to court unwell case formerly, rule lawfully reject its to sue, all do not have on cognizance fact and comfortable use statute undeserved.

(2) the problem that rules about 2 careful whether applicable law is correct.

" top people court builds case of dispute of engineering construction contract about cognizance the explanation of applicable law problem " 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, 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. " this the first should fasten principle regulation, apply a worker actually to just should hold the right relatively to the contract above all namely. In this case, xiao Jinan and in mansion Xi'an branch was signed " in-house engineering construction contracts agreement " , the contract that mansion Xi'an branch is Xiao Jinan in is opposite square, be like Jin Anying above all to in mansion Xi'an branch, medium mansion construction group holds the right, jin Anyi is like before this case lawsuit all the time to in mansion is construction group, medium mansion Xi'an branch holds the right and put forward appeal. The special status of regulation of this the 2nd department, fall in specific situation only namely, just allow the lawsuit that actual construction person mentions to include factitious defendant in order to send, and can advocate the person that send a package is in only owe pay a project the money responsibility is assumed inside limits. The mansion in the delegate is being fastened in be like Jin An to state project of project of experience of its on record for many times in other case builds a group to perform functionary act, the mansion in saying built a group to receive all rights on project of case experience project actually. In this case, although Xiao Jinan is the actual construction person of case experience project, its appeal advocates institute of salty in relief normal school pays a project the money to its directly, and rather than advocates institute of salty in relief normal school is in owe Fu Zhongsha to build group, medium responsibility is assumed inside limits of money of project of mansion Xi'an branch, what accordingly its tell the accused principal part also unwell case. Statute of comfortable use of 2 careful ruling is not had undeserved.

4, enlightenment and summary

Actual construction person (labor contractor) just allow below specific situation sue hair bag square. Specific situation is to show total package goes bankrupt, miss or financial condition condition worsens badly, or actual construction person comes contractor (total contractor) the contract between all is invalid case (Zhejiang tall courtyard is solved) .

The picture comes from a network (the friend is encircled) , graph article offers communication study only, if involve authority to belong to, inform oneself delete please: