Rights Remedy For The Actual Construction Perso

Since the reform and opening up,my country’s economic take-off is inseparable from the development of the construction industry and the hard work of migrant workers.However,the phenomenon of subcontracting,illegal subcontracting and borrowing of qualifications in the construction industry is very serious,which in turn affects the wage payment and rights protection of migrant workers.In this regard,the Supreme People’s Court issued the Interpretation on the Application of Law in the Trial of Construction Contract Dispute Cases in 2004,which proposed the concept of the actual constructor and gave the actual constructor the right to sue the contract developer by breaking through the relativity of the contract.In 2018,the Interpretation on the Application of Legal Issues in the Trial of Construction Contract Dispute Cases(II)was issued,which stipulates the subrogation rights of the actual constructors and further safeguards the rights of the actual constructors.In 2021,the Supreme Court issued the Interpretation on the Application of Law in the Trial of Construction Contract Dispute Cases(I),which integrates the two old judicial interpretations for the rights and remedies of actual constructors,and has not substantially revised.Based on a series of judicial interpretations of construction projects and judicial policy documents of courts all over my country,this paper studies the rights and remedies of actual construction workers.Firstly,through case analysis,three issues are raised: the lack of the right of action of the actual constructor in the case of affiliation,the difficulty of identifying the actual constructor,and the disagreement on whether the actual constructor can exercise the priority right of compensation for the construction project price.Secondly,through the theoretical analysis of the remedies for the rights of actual constructors,it is pointed out that the basic connotation of actual constructors is confusing,the identification standards are not uniform,and the legal relationship between the actual constructors and the contractor and the nominal constructor is more complicated,which leads to the fact that the actual constructors The types of rights and the objects to which the rights are exercised are diverse.Thirdly,through the analysis of the path of the actual constructor’s right to remedies,it is clarified that the actual constructor’s right to claim the construction project price in the case of subcontracting and illegal subcontracting includes two paths: breaking through the relativity of the contract and exercising the right of subrogation,affirming subcontracting and illegal subcontracting.The actual builder under the circumstances can exercise the priority right of compensation through the right of subrogation.Finally,it draws some thoughts on the actual construction workers’ rights relief.The actual builder under the affiliation situation forms a de facto contractual relationship with the developer when he knows about it,and when the quality of the construction project is up to standard,he may request the developer to compensate the project cost at a discount or to have the priority in compensation for the construction project price.The premise of solving the problem of identification of actual constructors is to clarify the legal connotation of actual constructors and to unify the identification standards of actual constructors through legislation.Including the actual constructor as the subject of the priority right to repay the construction project price needs to refine the current rights exercise process.