The Breakthrough And Limitation Of Privity Of Contract By Actual Constructors Of Construction Projects

Based on the objective reality of China’s construction industry,the actual builders will exist for a long time in China’s construction industry practice.The actual constructors are associated with migrant workers and their families.In order to guarantee the wages of migrant workers,the Supreme People’s Court has issued judicial interpretations in succession,giving the actual constructors the right to claim the project price from the Employer through the relativity of the contract.While allowing the breakthrough of contract relativity plays a positive role in protecting the rights and interests of migrant workers,new problems arise.Due to the ambiguity of legislation and the diversity of reality,in practice,there are layers of difficulties in how to break through the contract relativity.How to give full play to the advantages of breaking through the contract relativity and give appropriate restrictions to avoid the disadvantages it brings is a problem that has troubled the practice for many years.This paper is mainly divided into five chapters to analyze the breakthrough and limitation of the contract relativity of the actual constructor:The first chapter is the introduction,which mainly elaborates the legislative background and the reasons for choosing this topic.This paper expounds the basic concepts in the field of construction engineering and the causes and operation modes of the construction of the actual construction personnel system through three parts:the problem and its origin,the theoretical review and its frontier,the research perspective and theoretical presupposition,so as to pave the way for further discussion on why the actual construction personnel are given the right of action that can break through the contract relativity.The second chapter is "cause analysis:how the actual constructor breaks through the relativity of the contract".It mainly discusses the necessity of breaking the relativity of contract,the historical background of breaking the relativity of contract and the legal nature of the right of action of breaking the relativity of contract.The third chapter is "judicial dilemma:how to break through the relativity of the contract".Through a large number of cases,the disputes arising from the operation of the system are shown,such as the identification of the actual construction person and its manifestation?Can the actual constructor enj oy the priority of compensation of the contractor after breaking the relativity of the contract?Whether the actual constructor has the right to claim the project payment from the subcontractor during the layer-by-layer subcontracting.Although the judicial interpretation gives the actual constructor the right to break through the relativity of the contract,there are still a large number of judicial gaps that need to be filled by law.The fourth chapter is "adverse consequences:the disadvantages of the actual constructor breaking through the relativity of the contract".As a transitional chapter,it summarizes the benefits brought by the previous article to the actual constructor to break through the relativity of the contract and the problems existing in the existing system in judicial practice,and draws the conclusion that the system needs to be improved.The fifth chapter is "overcoming the disadvantages:the actual constructor breaks through the limit of contract relativity".Consideration on the actual constructor’s breakthrough of contract relativity.In view of the problems arising from the breakthrough of contract relativity in the field of construction engineering,combined with the judgment of the Supreme Court and the latest judicial interpretation,this paper puts forward its own suggestions for clarifying the specific restrictions and how to further optimize the existing system.