| For a long time,the protection of the rights and interests of migrant workers has been widely concerned by the community.In order to solve this long-standing problem more safely and steadily,and reduce the pressure on migrant workers to ask for salary,the Supreme People’s Court issued the interpretation on the applicable legal issues in the trial of construction contract disputes(Ⅱ)in 2019.The twenty-fourth article of this judicial interpretation is related to the vital interests of the majority of migrant workers.It breaks the relativity of the contract and allows the actual construction party to directly claim the provisions of project funds from the employer,which is of great benefit in safeguarding the rights and interests of migrant workers and promoting the well-being of the people.However,the judicial interpretation of this article does not define the specific scope of the actual builder,nor does it clarify the legal basis of the actual builder’s rights.Therefore,this article provides a reasonable legal basis for the actual construction contractor to claim the project funds from the employer,and makes its behavior have legal basis.At the same time,the concept of the actual construction contractor and the legal basis and constituent conditions for the actual construction contractor to exercise the rights also need to be clarified.The first chapter is "the legitimacy of the claim right of the actual construction labor payment".Article 24 of judicial interpretation of construction contract(2)stipulates that the actual constructor who has no contractual relationship with the employer shall be allowed to break through the relative relationship of the contract and require the employer other than the contract to bear the responsibility,which is obviously contrary to the principle of contract relativity,and where the correctness of such provisions comes from is the first question we need to explore.In order to accurately understand and apply the judicial interpretation of this article,it is necessary to clarify the source of the article.The right of claim for project fund of the actual constructor cannot be attributed to the existing right stipulation in the current legal framework of our country,the basis of which is the law itself.This judicial interpretation can be regarded as an exception to the principle of relativity of contract.The application of the judicial interpretation of this article shall be prudent,strict and restrained.The judicial interpretation of this article should be rigorous,prudent and restrained.Only when certain conditions are met can the principle of relativity of the contract be broken.The second chapter is "composition of claim right of actual construction labor".To understand the constitutive requirements of the right of claim for project fund of the actual builder is the right to exercise the right of claim.Generally speaking,the constitutive requirements of the right of claim for project fund of the actual builder can be divided into two parts.First of all,the subject is qualified.Only when the premise of the identity of the actual constructor is met,can the right be exercised.The actual constructor can not only be generated in subcontracting,illegal subcontracting,but also in borrowing qualification.Specifically speaking,the contractors of the subcontracts and the affiliated persons who exceed their authority to undertake the project belong to the actual constructors,including the actual constructors under the affiliated situation.The second is the prerequisite.For the sake of fairness,the provisions of this article can only be applied if the conditions are strictly met.In a word,it is necessary to meet the three preconditions:the quality of the construction project has passed the acceptance,the contract counterpart is difficult to perform the payment obligation,and the project price in arrears has been settled.The third chapter is "The realization way of the claim right of actual construction labor project payment".For the actual constructors in the case of illegal subcontracting and illegal subcontracting,there are two ways to claim the project payment from the developer.They can choose to exercise the claim right exclusively for the actual constructors’ project payment,and they can also choose to use the subrogation right of creditors.The two methods have their own merits and demerits.When meeting the requirements of subrogation right,subrogation right can be preferred to claim the project fund.However,considering the practical situation,the requirements of subrogation right are relatively strict for the actual constructor,which is usually not the best scheme in practice.In addition,there is a big dispute as to whether the actual construction contractor can Sue the developer according to article 24 of the judicial interpretation of construction contract(2).In addition,in the case of affiliation,we should analyze the legal relationship between the parties and choose the best relief path.If the employer does not know the act of affiliation,the provisions of this article are not applicable in principle.If the subrogation right is satisfied,the employer can be required to pay the project price based on the subrogation right.Where the employer is aware of the situation of affiliation,the contractor shall have the right as the actual builder to claim to the employer the unpaid project payment.The possible innovation of this paper is that it has a slightly different research Angle from the traditional perspective of overall overview of the actual builder’s claim to the right of project payment.This paper focuses on the affiliated person,with a little emphasis on discussing whether the affiliated person can belong to the scope of the actual construction person,whether the affiliated person can apply Article 24 of judicial interpretation of construction contract(2)as the actual construction person in the case of transfer and the whether subcontracting,and how the affiliated person chooses the realization path of the right to claim project funds.In addition,this paper emphasizes that starting from the latest judicial interpretation and combining with the latest judicial precedent in 2019,it reveals and anticipates the trajectory of judicial practice,hoping to play a little reference role in the specific application of project fund advocated by actual builders.The disadvantage of this paper is that although the author put forward his own views,but due to limited ability,the analysis is relatively naive,the research is not deep enough.The research scope of this paper is also limited to the project payment claim right of the actual constructors in China,there are few foreign related systems and few comparative studies.There is still a large space for further discussion,and further thinking is needed to enrich and improve it. |
