1、 The concept of actual construction personnel and the legislative intention
China implements strict qualification management for construction enterprises, requiring only companies that meet certain conditions to obtain construction engineering qualifications. But in reality, there are many entities that do not meet the qualification requirements but actually complete engineering construction. In order to protect the interests of units or individuals who actually fulfill their construction obligations in the event of invalid construction contracts, especially to safeguard the rights and interests of construction workers mainly composed of migrant workers, China has established the system of actual construction personnel in legislation.
The legal concept of "actual construction personnel" was first proposed by the Supreme People's Court in September 2004 in the "Interpretation on the Application of Law in the Trial of Construction Contract Disputes for Construction Projects". Article 43 of the Interpretation of the Supreme People's Court on the Application of Law in the Trial of Construction Contract Disputes (I), which came into effect on January 1, 2021, clearly stipulates that "if the actual construction party sues the subcontractor or illegal subcontractor as the defendant, the people's court shall accept the lawsuit in accordance with the law. If the actual construction party claims its rights as the defendant against the employer, the people's court shall add the subcontractor illegal subcontractor as a third party in this case. After determining the amount of construction project price owed by the employer to the subcontractor or illegal subcontractor, the employer shall be held responsible for the actual construction party within the scope of the unpaid construction project price." This provision provides a legal basis for the actual construction party to claim its rights and interests, and to a certain extent, breaks through the relative contract. Sexual principle.
Given that the actual construction personnel can directly claim the project price from the employer beyond the relativity of the contract, whether they can be recognized as actual construction personnel in practice has become an important point of dispute in construction project cases.
2、 Common types of actual construction workers
（1） Actual construction personnel borrowing qualifications (affiliated)
According to Article 9 of the Management Measures for the Identification and Investigation of Illegal Acts in Construction Contracting and Outsourcing, affiliation refers to the act of a unit or individual contracting a project in the name of another qualified construction unit. For example, if an unqualified individual A borrows the name of a qualified construction company B, signs a construction contract with the employer, and actually organizes the construction, individual A belongs to this type of actual construction personnel.
（2） The actual construction personnel who illegally subcontract
Article 7 of the Management Measures for the Identification and Investigation of Illegal Acts in Construction Contracting and Outsourcing stipulates that subcontracting refers to the act of the contracting unit, after contracting the project, failing to fulfill the responsibilities and obligations stipulated in the contract, and transferring all the contracted project or dismantling all the contracted project to other units or individuals for construction under the name of subcontracting. If Company B transfers all the contracted projects to Company A for actual construction, Company A will be the actual contractor in the case of illegal subcontracting.
（3） The actual construction personnel who illegally subcontract
According to Article 78 of the Regulations on Quality Management of Construction Projects and Articles 11 and 12 of the Measures for the Administration of the Identification and Investigation of Illegal Acts in Construction Contracting and Outsourcing, illegal subcontracting refers to the general contracting unit subcontracting construction projects to units that do not have the corresponding qualifications; If there is no agreement in the general contracting contract for the construction project and it is not recognized by the construction unit, the contracting unit will hand over part of the construction project it has contracted to other units for completion; The general contracting unit will subcontract the construction of the main structure of the construction project to other units; The act of subcontracting the construction project undertaken by the subcontractor. If Company B illegally subcontracts the project to unqualified Company A for construction, Company A is the actual contractor in the illegal subcontracting.
3、 Criteria for identifying actual construction personnel
（1） Actual input factors
The actual construction personnel generally need to have actual investment in the engineering project, including hiring labor, material procurement, equipment leasing, capital investment, and collection and payment of project funds. For example, in a certain project, person A recruits workers to form a construction team, purchases the necessary building materials, leases construction equipment, and raises funds for the early operation of the project. At the same time, they are responsible for settling payments with material suppliers, workers, etc. This indicates that person A has actual manpower, material resources, and funds invested in the project construction, which is in line with the characteristics of actual construction personnel in terms of investment factors.
（2） Consideration of project scale
The actual construction content carried out by the construction personnel should usually be relatively independent individual projects in the construction project, and it is necessary to provide evidence to prove that the actual construction part of the project content reaches a scale above that of the individual project. For example, if Company A undertakes the construction task of a residential building in a certain community construction project, completing a series of relatively independent and complete construction contents from infrastructure construction to main structure completion, and then to interior and exterior decoration, then the residential building constructed by Company A can be regarded as a relatively independent single project, and Company A meets the recognition criteria as the actual construction personnel in terms of project scale.
（3） Quality responsibility assumption
Only those who independently assume quality responsibility for the construction content should be recognized as actual construction personnel. Delivering construction projects with qualified quality is the main contractual obligation of the construction personnel, and it is also a prerequisite for the actual construction personnel to obtain the project price. For example, during the completion and acceptance of the project, if there are quality problems with the part constructed by the construction team A, the construction team A needs to independently bear the quality responsibility of rework, maintenance, etc., rather than being borne by its contractual counterpart or other parties. This indicates that the construction team A meets the standard of independently assuming quality responsibility for the construction content.
（4） Contractual Relationship and Independence
1. Relationship with the contractor: There is no direct or nominal contractual relationship between the actual construction personnel and the contractor. For example, Company A undertakes the project from Company B through layer by layer subcontracting, and there is no direct contractual relationship between Company A and the employer Company B, which is in line with the characteristics of the actual contractual relationship between construction personnel.
2. Relationship with subcontractors, illegal subcontractors, or qualified lending enterprises: There is no labor or service relationship between the actual construction personnel and the subcontractors, illegal subcontractors, or qualified lending construction enterprises, and they have a certain degree of independence in operation and construction, and can independently assume the responsibility for project quality. If individual A borrows the qualifications of construction company B to undertake the project, there is no labor relationship between individual A and company B. Additionally, individual A has the right to independently manage the construction process, make decisions on key issues, and assume quality responsibilities. In this case, individual A meets the requirements of the actual construction personnel in terms of contractual relationship and independence.
4、 Precautions for identifying actual construction personnel
（1） Exclude specific entities
1. Internal contractor: The internal contractor of a construction enterprise, such as an employee who is responsible for the construction of a certain project based on the internal contracting agreement of the enterprise, essentially represents the performance of duties on behalf of the enterprise, has a labor relationship with the enterprise, accepts enterprise management, and does not meet the recognition conditions of actual construction personnel. For example, if Employee A of Construction Company B is responsible for the construction of a certain project undertaken by the company according to the company's internal contracting agreement, and accepts the company's unified allocation of resources, management supervision, etc. during the construction process, Employee A is not considered an actual construction worker.
2. Construction team: A simple construction team that is only responsible for providing labor services, does not organize construction, material procurement, capital investment, etc., and has no construction contract relationship with subcontractors or illegal subcontractors, but only receives labor remuneration from the actual construction personnel (contractors). Such construction teams do not belong to the actual construction personnel. For example, if the construction team A is employed by the actual construction worker B and only provides labor services in the project undertaken by B, without participating in other construction related affairs, the construction team A should not be recognized as the actual construction worker.
3. Individual migrant workers: Migrant workers who do not have a construction contract relationship with subcontractors or illegal subcontractors cannot be directly identified as actual construction workers, and can only claim rights from their employers (actual construction workers or other labor service recipients) based on labor or service relationships. For example, migrant worker A is employed by contractor B to work at a certain construction site, and A is not considered an actual construction worker.
（2） Principle of comprehensive judgment
When determining the actual construction personnel, it is not advisable to hastily identify them based solely on one factor. Instead, it is necessary to comprehensively consider various factors such as contract formation, actual investment of personnel and machinery, project management and control, revenue and expenditure, and responsibility for project quality. For example, in a certain dispute case, individual A claims to be the actual construction worker. Although individual A provided some material procurement vouchers, there is insufficient evidence in other aspects such as project management, personnel organization, and payment receipts and expenditures, and it cannot prove independent responsibility for project quality. Therefore, individual A is unlikely to be recognized as the actual construction worker.
Lawyer Introduction
Zhang Shuolei
Phone: 18301906778
Email: zsl@gcls.cn
Lawyer Zhang Shuolei graduated from East China University of Political Science and Law. Over the past few years, Lawyer Zhang Shuolei has always adhered to the principle of putting client interests first, providing high-quality legal services to numerous clients. His main practice areas include civil and commercial litigation and corporate advisory services, and has successfully represented a large number of labor disputes and commercial litigation cases. I have rich litigation experience in company related disputes, contracts, real estate, and other fields.
