On The Litigation Right Of The Actual Construction

For the problem that whether the actual constructor has the ability to directly prosecute the project employer or not, different scholars have different views. Some scholars consider that rights should not be given to all of the actual constructors to prosecute directly the project employer; some believe that the affiliated person, though one of the actual constructor, do not have the qualifications; and the others insist that the affiliated person shall also enjoy the right to prosecute the project employer. This paper holds a positive view on this issue, and analyses Article26in the "Interpretation on Issue Regarding the Trial of Cases Involving the Construction Contract Disputes, Issued by The Supreme People’s Court"(hereinafter referred to as "Judicial Interpretation") combining with other laws and regulations and local guidance, explains how to protect the rights and interests of the actual contractor.This paper is divided into five chapters:The first chapter, combined with the purpose of the introduction of Judicial Interpretation, the paper gives a discussion on the concept of the actual constructor and introduces its forms, which includes the subcontractor from illegal subcontracting, the illegal sub-contractor, and the affiliated person. Besides, the paper analyses the social background in which generates the forms of actual constructors, and the status in quo of the equity of them.The second chapter studies the right for the actual contractor to directly prosecute the project employer, according to Article26, Section2of Judicial Interpretation. In the beginning, by studying and contrasting different views of different scholars about this right for actual contractor, the paper gives its own view, a positive view:first, there is a necessity and feasibility here to take a breakthrough of the relativity principle of contract; second,"Chinese Contract Law" has already set a principle called "Subrogation", which also has broken the relativity principle of contract and has been accepted by the civil law countries, and we can explain the application of Article26, Section2with this principle too; third, even from the point of view that the actual contractor and the project employer have already formed a contract in fact, the same result can be reached that the actual contractor shall enjoy the right with legality and rationality. Then, based on the conclusion that the actual contractor shall enjoy the right to prosecute the project employer directly, the paper gives a further study to learn whether the affiliated persons belongs to the category of actual contractor in Article26or not. The paper gives a positive view either by reading some relative cases, studying the context of Article26, and analyzing the legislative process and the purpose in setting the Judicial Interpretation. At last, the paper talks about the necessary conditions for the actual contractor to prosecute the project employer directly, and the responsibility that the project employer should bear in such disputes.The last chapter puts forward the suggestions and ideas to the actual contractor so that they can perform their right in a better way.