Research On The Right That Actual Construction Subject Requests The Developer To Pay Project Payment

In 2004,the Supreme People's Court promulgated the Interpretation of the Supreme People's Court on Several Issues Concerning the Trial of the Construction Contract Dispute Cases(hereinafter referred to as the "Interpretation").For the first time,the concept of actual construction subject was used in articles 4,25 and 26.And it allows that the actual construction subject claims the right of the project payment to the developer directly in article 26.The dispute of between actual construction subject and developer increased year by year with the promulgation of "interpretation",and the legal issues associated with it are also emerging.for example,What is the nature of the right of the actual construction subject directly to developer? What conditions should be met for the actual construction subject that the request of construction payment will be supported by the court? Is the actual construction subject exist only in subcontracting? Whether the invalid construction contract as a basis for reference about the amount of project funds between the actual construction subject and the developer? What costs the actual construction subject can claim? These problems will directly affect the realization of the actual construction subject's right,and It is necessary to discuss.The first part of this article aims to clarify dispute of project funds and clear the focus of controversy between actual construction subject and developer with the methods of empirical analysis.I found that Judicial practice disputes are mainly concentrated on The nature of the claim,The right to exercise the elements,Construction settlement basis,Project range And so on.The dispute of the nature is mainly manifested: Factual Rights and Responsibilities,Unjustly rewarded,study of Subrogation;Disputes over the exercise of the right,Including Validity of contract,Actual construction qualification,project funds,Subcontract and other intermediate contractors are lazy to exercise the claims;The following are dispute of the base for the settlement of construction payment: Refer to the contract or the actual construction cost,What is the reference basis when Several construction contracts are invalid,the terms of the contract shall apply contract.The main dispute for the scope of the project payment,including direct fee and indirect fee,whether the tax can be deducted or the construction profits can be supported,and so on.The second part of this article mainly analyzes the nature of the right of the actual construction subject.Disputes about the nature of the claim of the actual construction subject between the practice and academia,including factual rights and responsibilities,fault liability,contract relativism,policy protection,unjustly rewarded,study of Subrogation,and so on.This paper is based on the comprehensive analysis of various doctrines and the rights of actual construction subject.I think the nature of the claim is the unjust enrichment claims.The third part of this article aims to clarify the element when actual construction subject claim to the developer.The following are disputes about the elements of the right of actual construction subject: validity of contract,Whether the actual construction subject is appropriate,Whether it is necessary to identify the arrears of the project between actual construction subject,developer and the other middle contractors.In the subcontracting occasions and the affiliated occasions,whether it requires the subjective fault of Subcontractors and the person who are anchored to.I believe that the exercise elements about the right of the actual construction subject includes: The construction contract is invalid;The actual construction subject are civil subject who personally signs and executes the contract,and completes construction projects totally or partially through investment and organization,including "contractors",the person who are anchored to,"the last hand" of subcontracting occasions;Developer and the intermediate contractors due project funds;However,it is not necessary that intermediate contractors exist subjective fault and do not claim to the contractor in subcontracting occasions and anchoring occasions.The fourth part of this article focuses on the basis about settlement of the project payment between the actual construction subject and the developer.This section revolves around the following controversy: First of all,how to distinguish between the actual settlement and contract agreed in different situations;Secondly,what kind of contract should be based on when the parties refer to the contract agreed to settle dispute;Thirdly,which contract should be based on when Several construction contracts are invalid;Finally,What principles should be followed and Which contract terms can be referred to when the parties settle the project payment.I think that It should be settled with reference to the construction contract,and the construction contract here can also be a contract between the contractor and the subcontractor;It shall refer to the contract actually performed by the parties when several contracts are invalid;When the contract and the actual performance contract is unknown,and the contract violate the mandatory provisions of laws,we should settle project payment according to the actual amount.Referring to applicable contract should be guided by the principle of project payment settlement and the principle of interests,balance,and refer to theprice terms,settlement terms,engineering quality terms.No other terms shall apply.The fifth part of this article mainly talk about the charge of construction,which belongs to actual construction subject.So as to make sure that what kind of costs of the total amount about construction process should be included in.First of all,this part clarifies the composition of the charge about project by defining the cause of the value and the cause of the cost,and defines the scope of unjust enrichment;Secondly,analyzing the range of direct and indirect costs in project funds;Thirdly,the profits and taxes in the project are discussed and this part make sure profit shall not be deducted from the project and the agreement of profit reduction is invalid.It depends on the contractual agreement and the actual performance situation of payment that whether the tax is included in the charge.Finally,the claim of project progress award of the project that the actual construction subject has asked for cannot be supported.