Research On Legal Issues Of Protection Of Rights And Interests Of Actual Constructors In Construction Projects

Since entering the new century,China’s construction industry has developed rapidly,and the construction market has carried out infrastructure construction in full swing.As a result,a large number of labor forces have flooded in,and various types of construction companies have sprung up like mushrooms.The non-standard development of the construction industry has also brought the emergence of illegal subcontracting,subcontracting and affiliated phenomenon.To the safety of our people’s residence,the legal system of the construction industry in China at night and so on has put forward greater challenges.In judicial practice,there are still some disputes on the actual construction personnel.This paper will discuss and analyze the scope of the actual constructor,the protection of the creditor’s right of the actual constructor and the protection of the priority right of the actual constructor:The first part expounds the scope of actual construction personnel.According to the provisions of judicial interpretation,the actual construction person includes the actual construction person arising from the borrowing of qualification,illegal subcontracting and illegal subcontracting.In terms of whether the contractors,internal contractors,migrant workers,labor subcontractors and other groups belong to actual construction workers,we should make a concrete analysis according to the essential characteristics of actual construction workers.It is clear that internal contractors,migrant workers and labor subcontractors are not the actual builders.The contractor shall comprehensively determine whether the contractor belongs to the category of actual constructors based on its independent operation and self-responsibility for profits and losses.In defining the scope of the actual constructor,the contract should be taken as the basis and the construction content as the reference.The second part discusses the problem of creditor’s right protection of the actual construction price.The basis of creditor’s right protection of actual constructor includes two aspects:project quality and project scope.Even if the employer takes possession without authorization,the actual constructor shall bear the burden of proof.For the part of the project beyond the scope agreed by both parties,the actual constructor claims that the construction project price shall be judged on the basis of whether it constitutes apparent agency.Under multi-layer subcontract,the author does not agree that the actual construction person has the right to claim the construction project price from the subcontractor or the general contractor.The third part studies the priority right of compensation of actual builders.The nature of the priority right of compensation should belong to legal priority.In terms of the scope of priority right,it should be made clear that interest,profit,advance capital,margin,etc.belong to the scope of priority right,and margin and capital occupation expense are not included in this scope.Firstly,whether the actual construction personnel can exercise the right of priority compensation is analyzed,and the possibility and legitimacy of the actual construction personnel exercising the right of priority compensation are presumed through legal provisions and legal analysis,especially whether the actual construction personnel borrowing the qualification enjoys the right of priority compensation is analyzed in detail.Secondly,it analyzes whether the exercise scope of priority compensation includes interest,profit,loss of work stoppage and advance capital.The author agrees that interest should not be included in the scope of priority compensation,but the advance money should be considered according to whether it is actually put into the project.