Research On The Legal Of The Actual Constructor In The Construction Contracts

Construction project contract is a typical type of contract in the original Contract Law.In order to adapt the court to handle the dispute cases of construction project contract,the Supreme People’s Court formulated the Interpretation of the Supreme People’s Court on the Applicable Law Issues in the Trial of Dispute Cases of Construction Project Contract in 2004 and set up the system of actual constructors.The establishment of this system not only solves the litigation problem of the parties who do not have the construction qualification but engage in construction activities,but also regulates the actual builders from the aspects of contract effectiveness,construction project quality and the exercise of rights.Due to the fact that there are many blank problems in the actual construction person system and the regulation is too principle-based,the understanding and understanding of the same interpretation provisions of the courts in different places are quite different.In addition,the complicated and changeable judicial practice leads to the phenomenon of different judgments in the same case in practice.The judgment of the actual constructors in the judicial practice caused the author to think about the exercise of the actual constructors’ rights and other legal issues.Since the actual construction person is a legal term created by judicial interpretation,but the judicial interpretation does not stipulate the concept,form of expression and identification conditions of the actual construction person,the first problem we face in judicial practice is how to identify the actual construction person.The author puts forward that the actual constructors should be defined from such aspects as the identification of contract effectiveness,the fulfillment of construction obligations and the relationship between the legitimate constructors.The forms of the actual constructors are mainly divided into illegal sub-contractors,illegal sub-contractors and contractors who borrow enterprise qualifications to contract construction projects.This paper analyzes and demonstrates the different theories on the basis of the actual builders’ rights,points out the shortcomings of the theory of unjust enrichment return and the extension of subrogation,and supports the theory of breaking through the relativity of contract.When the actual construction person claims the project price to the other party of the contract and other contract parties,whether to set up strict conditions of prosecution,the article,combining with the judicial practice,demonstrates its own views.As to whether the actual constructor has the priority to be compensated for the project price,the author thinks that the employer should have the priority to be compensated if he knows or should know that the actual constructor has borrowed the qualification,but the actual constructor under other circumstances does not.According to the principle of the same rights and obligations,the actual constructor should also bear the responsibility for the quality of the project,the liability for breach of contract and the liability for tort.In terms of exercising the rights of the actual constructors,the article thinks that the proper parties,the validity of the contract and the situation of the project payment in arrears should be taken into consideration.The author also demonstrates the burden of proof in the exercise of the constructors’ rights.How to deal with the disputes between the actual constructors and the other parties of the contract on the basis of the settlement of the project price?The author demonstrates that the settlement method should be first chosen according to the contract,while the actual construction person still has the right to choose the settlement method based on the facts.When there are more than one contract in the actual construction,the author puts forward and demonstrates the choice of three kinds of settlement methods.Judicial interpretation of the employer to the actual construction of the responsibility to make provisions,but in practice how to understand it is still controversial.The author demonstrates that the responsibility undertaken by the employer is his own responsibility,not vicarious responsibility,and the nature of the responsibility undertaken by the employer to the actual construction worker is his own independent responsibility.It is a common situation in construction contracts that construction projects are carried out by relying on the qualifications of other enterprises,layer upon layer subcontracting and layer upon layer subcontracting.In these two cases,there is also a great controversy over the actual construction fee.As for the claim of project price by the actual builder in the attached case,the employer should be treated separately by distinguishing whether the employer knows about the borrowing qualification of the actual builder.In the case of multi-layer subcontracting or multi-layer subcontracting,where the actual construction person claims the project payment to the employer,the court shall add the other subcontractors or illegal subcontractors as the parties.The author also demonstrates that the actual constructor should not claim the project price from the intermediate subcontractor,illegal subcontractor or general contractor with whom he has no contractual relationship.Although the establishment of the actual builder system has solved many difficult problems in the construction contract of construction projects,there are also many problems in the theory and practice of the system,such as the imperfect setting of the actual builder system,the insufficient application of the actual builder subrogation litigation,illegal acts and malicious litigation,etc.At the end of the article,the author puts forward some measures to perfect the actual construction personnel system.First of all,the occurrence of illegal acts such as subcontracting and illegal subcontracting should be prohibited from the source.Secondly,to the more controversial issues in judicial practice,detailed rules of adjudication from the judicial level;Thirdly,we should perfect the new measures to protect the interests of migrant workers.It is hoped that through the proposal,analysis and suggestions of the above problems,it can play a role in attracting more legislators,judicial workers and other legal practitioners to pay attention to this problem,solve the judicial difficulties together,better serve the parties,and promote the healthy and sustainable development of the construction industry.