Research On The Problem Of Anchored Actual Constructors

Although “the interpretation of the law applicable on the trial constructioncontract dispute cases of the supreme court”(hereinafter referred to as the“interpretation”) parallel actual constructor with the developer and the contractor, theemerge of actual constructor is but a compromise. With the influence of estatecommercialization and construction of infrastructure, the construction industry ofChina booms so fast that qualified constructors are not able to take part in everyconstruction by themselves. As a result, numerous unqualified industrial workers areabsorbed into construction industry, which are anchored to qualified constructors andbecome actual constructors. Hazard has emerged in the standardized administration ofconstruction market that wage arrears for industrial workers frequently happen. Thequality of architecture is becoming a focus problem of the public opinion. In order toprotect the legal rights of actual constructors and to hasten fit development ofarchitectural industry, the “interpretation” on the one hand formulate clearly to protectthe rights of actual constructors, as for provide them with relative resistance to breakthe contract in the context of the right to appeal the acceptance of constructionprojects. On the other hand, to balance the interests between actual constructor andthe developers, it set restrict threshold for the actual constructors to exercise theirrights. To sum up, the existence of actual constructor shows its necessity on somelevel, but with the objective circumstance changing, if the laws overprotect the actualconstructors, the negative effects on the architectural industry will be more and moreobvious.First of all, this article mainly introduces the general theory on actual constructorsystem. It discusses the legal concept, the realistic background and the negativeeffects of actual constructor in detail. The author thinks it is more acceptable to getrid of the conditions as part or whole subcontracting while analyzing the legalconcept of actual constructor, only the study on anchored actual constructor ismeaningful. When actual constructor institution just appears, the phenomenon of wage arrears for migrant rural workers is very serious. With the emergence andappliance of "interpretation", the actual constructor institution is abused. It cannotprotect the interests of actual constructors; meanwhile it challenges the limitedlegislative resources of the court.Secondly this article mainly introduces the legislative status of actualconstructors. China belongs to the civil law system, as an actual illegal subject, theappliance of the law is the key to trial persuasion. Due to the complex of participant,the legal relationship as well as strengthened judicial concept of protecting vulnerablegroups, when the architecture’s quality is in dispute, the “interpretation” changes thecurrent laws, majority of which is applied to punish the actual constructors.Then the article describes actual constructor’s rights and obligations. Based onformer introduction, it elaborates the precondition and methods of actualconstructor’s legal rights and obligations. If we insist on contract relativity, actualconstructors requesting their payments and the right of repayment priority will losetheir foundations. We will lose substantial justice when formalistic justice isoverwhelming. Meanwhile when the quality of construction is not admitted, actualconstructors should undertake the responsibility appropriate for differentcircumstances of breach of contract or tort liability.Finally this article introduces the litigation status of the developers and actualconstructors, which proves the rationality of “interpretation” according to principlesof civil procedure law and combines the theoretical basis with practical operation.Then the writer makes his own suggestions about the perfection of actual constructorinstitution. By using both administrative and civil methods, on one hand theunqualified constructors will be eliminated from the construction industry as soon aspossible, on the other hand the author hopes that rising cost of illegal constructionactivities will deter actual constructors and eventually standardizing the constructionmarket.