An Empirical Study Of The Actual Builder’s Recovery Of Construction Money From The Contractor

Although the "actual constructor system" has been in existence for a long time,the concept of actual constructor and its related provisions are still not clearly defined in the Civil Code and the Interpretation I of the Supreme People’s Court on the Application of Law in the Trial of Construction Contract Disputes(hereinafter referred to as the new Interpretation I),which came into effect in 2021.The relevant provisions are rather vague.At present,the actual constructor system has to a certain extent put pressure on the contractor in construction projects,but the rights and interests of the actual constructor are not fully protected,which leads to the situation of defaulting on migrant workers’ wages and so on.In a large number of construction contract disputes,there are many cases of multi-layer subcontracting,illegal subcontracting,illegal borrowing of qualification for dependency,etc.While the judicial interpretation gives the right of the actual constructor to file lawsuit to the contractor,the system is not perfect at present,which brings a lot of difficulties to the judicial practice of the courts around the world,such as the identification of the main qualification of the actual constructor,how to allocate the burden of proof for the unpaid construction money,and the scope of the main body claiming the priority right to compensation in construction works,which makes the recovery of the construction money of the actual constructor still difficult.Therefore,this thesis focuses on the empirical research on the issue of recovery of construction money by the actual builder,through analyzing typical cases,combining theory and practice,summarizing the difficulties in judicial practice,analyzing the causes and proposing relevant countermeasures,with a view to forming unified adjudication rules,better solving such disputes and safeguarding the rights and interests of the actual builder.The main structure of this thesis is as follows: The first part is a brief introduction to the background of the topic of this thesis,the current status of domestic and foreign research,the research method and its significance;The second part is an overview of the basic theory of the actual builder’s claim for the construction price,mainly including the origin,concept and theoretical basis of the actual builder;The third part is an analysis of the overall trend of judicial cases involving actual builders in China in the past ten years,and a discussion of three typical cases of the Supreme Court or the High Court,which analyzes the definition of the identity of actual builders in legal practice,the allocation of the burden of proof on the construction price in the trial of cases,and the analysis of the attitude of actual builders to enjoy the priority right to receive the construction price in practice;The fourth part is based on the second part of the case and the conclusions drawn from the discussion and analysis,in the hope that the future legal refinement and standardization of these cases can easily lead to controversies in the judgment of courts around the world and at all levels of courts on the construction contract disputes of the actual builder,so as to achieve the same judgment in the same case,enhance the credibility of justice,effectively protect the vital interests of farmers and achieve fairness and justice.Specifically,it includes the clarification of the concept of actual builder,the criteria of identification and the three specific types of actual builder,the clarification of the burden of proof and the specific rules of application,and finally the restriction of allowing the actual builder to enjoy the priority right of compensation.