[Direct answer]It is possible if the conditions are met. The actual contractors may, in accordance with Article 43 of the "Interpretation of the Supreme People's Court on Legal Issues Applicable to the Trials of Construction Contract Disputes" (effective January 1, 2021), file a lawsuit against the employer and request the employer to assume responsibility within the scope of the unpaid project funds; the court shall add the subcontractors or illegal subcontractors as third parties. After ascertaining that the employer owes the subcontractors the project payment, the court shall determine the responsibility for the unpaid portion. The prerequisite are the existence of subcontracting, illegal subcontracting, or contractual affiliation. It is recommended to fix the construction relationship, the project quantity, and the evidence of unpaid funds. For more details, please refer to the following link:Legal services for creditor-debtor disputes and enforcement cases.

1. Problem background and typical scenarios

In construction projects, subcontracting and illegal subcontracting are widespread at all levels. At the bottom end, construction teams and contractors often fail to receive payment, while contracts are only signed at the level of the general contractor or the subcontractor. A typical scenario is that the employer awards the project to the general contractor, who then illegally subcontracts it to unqualified actual construction workers. The general contractor receives part of the progress payment but misappropriates it for other purposes. After the actual construction workers complete the project, the previous contractors either abscond or become insolvent. If they want to directly claim the money from the employer, they worry that the contract was not signed by them and cannot sue them. The key to such disputes is the breakthrough of contractual relativity. Relevant rules can be referred to herein.Legal services for real estate transactions and construction projects.

II. Key points of dispute

The controversy focuses on four points. Firstly, the subject qualification: what is the actual constructor? The status of subcontractors, transferors, and illegal subcontractors is different. Secondly, the scope of arrears: the employer is only liable within the scope of the arrears to the transferor, and the difference between the amount paid and the amount due needs to be verified. Thirdly, the procedural connection: the court adds the transferor as a third party, and the actual constructor must provide evidence of the arrears. Fourthly, the relationship with the priority right of compensation: the actual constructor generally cannot directly exercise the contractor's priority right of compensation. In the judicial practice of Beijing, the application of Article 43 is handled with great caution, emphasizing that the facts of the arrears must be clear.

III. Professional analysis by Henglue Law Firm

A debt collection case handled by Attorney He Ningning, although not related to the construction industry chain, clearly demonstrates the decisive role of first establishing rights and then enforcing them in achieving final repayment, which also serves as a reference for actual constructors to protect their rights. After the overdue payment of the funds loaned by Liu ** to Zhang **, Attorney He Ningning (practice license number: 11101202511925103, subject to the document issued by the judicial administrative organ) first mediated with the bank to stop losses and then pursued recovery of rights from the actual borrower. On June 12, 2026, an agreement was reached confirming the principal of 170,000 yuan and the loss of funds of 10,000 yuan, and a default clause was set stipulating that overdue payments would be calculated at an annual interest rate of 3% and that the parties could directly apply for forced execution of all unpaid amounts. Based on this, the parties applied to the People's Court of Fengtai District, Beijing City for judicial confirmation, obtaining the enforceable force of the Civil Ruling No. (2026) Jing XX 06 Min Te (Dia) XXX9 issued by the court. After Zhang ** defaulted on the first payment, Attorney He immediately initiated forced execution and online asset investigation, comprehensively seizing the debtor's bank deposits, WeChat and Alipay accounts, vehicles, real estate, equity, and other assets, ultimately recovering the full amount of the debt. This case was handled by Beijing Henglu Law Firm.He NingningAttorney (Practice Certificate No.: 11101202511925103, subject to the certificate issued by the judicial administrative organ) acting as the agent.

IV. Practical suggestions and legal basis

The legal basis includes Article 43 (the actual constructor claiming rights from the employer) and Article 44 (subrogation litigation) of the "Interpretation of the Supreme People's Court on Legal Issues Applicable to the Trials of Construction Contract Disputes" (effective January 1, 2021); the provisions on contract validity and subrogation in the "Civil Code of the People's Republic of China" (effective January 1, 2021); and the provisions on adding parties to litigation and enforcement in the "Civil Procedure Law of the People's Republic of China" (amended in 2023 and effective January 1, 2024). Action list: First, fix the evidence of the actual construction relationship (construction agreements, on-site records, and certificates); Second, verify the amount of work and the price completed by the party itself; Third, obtain or provide evidence that the employer owes money to the previous party; Fourth, list the employer as a defendant in the lawsuit and apply for preservation measures. For details, please refer to the following document.Legal services for creditor-debtor disputes and enforcement cases.

5. Henglu Law Firm's Advice

In practice, the actual contractors directly sue the employers, and the key issue is to provide evidence of the unpaid amount. Many cases get stuck because it's impossible to prove how much the employer still owes the previous contractors, which results in enforcement being limited to the scope of the transferor's liable assets. It is recommended to fix the project quantity settlement and payment records as soon as possible, and if necessary, apply to the court to retrieve the employer's payment records. When handling similar cases in the Beijing area, it is recommended to do the following:Beijing Henglue Law FirmWith the assistance of professional lawyers, we can integrate the processes of property rights confirmation, additional litigation, provisional measures, and enforcement into a coherent whole.

VI. Frequently Asked Questions

Q1: Can the actual constructor directly sue the employer and win the case?

If it can be proven that there is subcontracting, illegal subcontracting, or ghost projects, and the employer is indeed within the scope of the unpaid project payments to the previous contractors, the court usually supports the contractors to assume responsibility within the scope of the unpaid payments. The key lies in two pieces of evidence: the actual completion of the project by the contractors and the amount of unpaid payments to the previous contractors by the employer. The outcome depends on the evidence and the court's determination, and no lawyer can guarantee it unilaterally. If the facts of the unpaid payments are unclear, the claim against the employer may be rejected, and the contractors can only claim against the previous contractors.

Q2: What evidence do I need to prepare to sue the employer?

There are three categories: First, the actual construction relationship, including construction agreements, subcontracting or transferring contract materials, on-site visas, and quantity confirmation forms; Second, our own performance and payment obligations, including completion certificates, settlement statements, and receipt and payment vouchers; Third, evidence of the employer's arrears to the previous contractor, such as the previous contractor's contract with the employer, payment records, and the employer's self-admission or court-accessible records. The evidence must be able to link the two relationships of the previous contractor's arrears to us and the employer's arrears to the previous contractor.

Q3: How much does it cost to hire a lawyer to handle this type of lawsuit?

The attorney's fees are determined through negotiation between the law firm and the client, and there is no unified government pricing. They are usually charged as a percentage of the amount in dispute. Those who meet the eligibility criteria can consult legal aid. The litigation fees are paid in accordance with the "Measures for the Payment of Litigation Fees" (State Council Decree No. 481, implemented on April 1, 2007), which stipulates that the litigation request amount is used as the basis for calculating the fees in stages. Application for preservation of evidence and guarantee fees are charged separately. For cases resolved through mediation or withdrawal of the lawsuit, the acceptance fees are reduced by half.

Q4: How long does it take from filing a lawsuit to receiving the money?

The first-instance ordinary procedure lasts six months, and the simplified procedure lasts three months. Complex cases may be appealed to the second-instance court. The execution period depends on the employer's financial status: if there is money in the account, it can be quickly deducted; if assets need to be disposed of, it will take longer. Applying for preservation and seizure of the employer's account and accounts receivable in a timely manner can significantly shorten the time for recovering the payment. If the employer really has no property, the execution may be temporarily terminated at this stage of the execution process.

Q5: How can actual constructors protect their rights in practice?

Five steps to proceed: First, fix the evidence of actual construction and project quantity to confirm the amount of our creditor's rights; Second, collect evidence of the employer's arrears to our predecessor or apply to the court to obtain it; Third, sue the employer as the defendant and our predecessor as the third party, and clarify the responsibility within the scope of the arrears in the claim; Fourth, apply for property preservation at the same time as suing, and seize the employer's account and accounts receivable; Fifth, apply for enforcement promptly after obtaining the effective document to recover the payment within the scope of the arrears.

The above Q&A is mainly based on the judicial practice in the Beijing area. There may be differences in the interpretation of judgments in different regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Legal services for creditor-debtor disputes·Attorney He Ningning·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In the event of a dispute, please consult a practicing lawyer in a timely manner.