Research On The Protection Of The Rights Of The Actual Constructor In The Construction Contract Of Construction Project

With the rapid development of China’s economy and society,the real estate and construction industries are booming.Due to the strict management of the qualification requirements of the construction market,a large number of actual constructors occur in the field of construction engineering.At the level of legal norms,the legal system on adjusting the rights and obligations of actual constructors is not comprehensive.In practice,due to the lack of clear provisions in legislation,there are many constraints in the protection of the rights of actual construction workers is facing many constraints,and the courts often fall into a passive state of "no basis".Therefore,the protection of the rights of actual constructors has become a hot issue in the field of construction contract disputes.From the standpoint of maintaining social stability and protecting the legitimate rights and interests of migrant workers,the wage payment of migrant workers is closely connected with the rights of actual construction workers,which means that whether the legitimate rights of actual construction workers can be protected directly affects the harmony and stability of the whole social people’s livelihood.At the same time,China’s construction market is full of chaos and could not be eliminated in the short term.The special subject of actual construction will exist for a long time.It is realistic legitimacy and necessity to protect it.The judicial interpretation of the construction contract issued by the Supreme Court involves the protection of the rights of the actual constructor to a certain extent,but there are no detailed provisions.Therefore,it is difficult to form consistent judgment opinions in the face of relevant controversial issues in judicial practice,and there are many uncertain factors in the judgment results.Foreign countries such as France,Germany and the United States have also made corresponding explorations in the protection of the rights of actual constructors,such as clarifying the right of the third party to claim the project price from the owner in the legislation,implementing the project guarantee system to strongly protect the realization of the rights,etc.In the future,China shall improve the protection system of the rights of actual constructors in many aspects and dimensions: Firstly,we shall clarify the scope of application and right basis of the protection system of the rights of actual constructors;Secondly,clarify the relationship between subrogation litigation and arbitration of the actual constructor,and give the actual constructor the priority to be compensated for the construction project price;Finally,establish and improve the project payment guarantee system in China to better protect the rights of actual construction workers.