Research On The Protection Of The Actual Builder’s Rights And Interests

To safeguard the rights and interests of the actual builders is not only the need to realize substantial justice,but also the requirement of social and economic development.To this end,the Supreme People’s Court has issued three judicial interpretations,which for the first time put forward the concept of the actual builder in the law,which to a certain extent solved the problem of migrant workers’ difficulty in asking for wages,and also provided normative guidance for resolving other disputes in the field of construction projects.However,the problems in judicial practice are becoming more and more complex,the provisions of judicial interpretation are too principled,and there are still many difficult disputes in practice.This paper studies four parts: the identification of the actual builder,the nature and exercise of the actual builder’s right to claim project price and the priority of the actual builder’s right to compensation.The first part,through the collection and analysis of relevant cases in judicial practice in recent years,sorted out the problems existing in the protection of the rights and interests of the actual builder,including the identification difficulties of the actual builder,unclear conditions and scope of the right to claim for project price,whether the actual builder enjoys the priority right to be compensated for the project price,etc.In the second part,the theoretical viewpoints on the basis of the construction price claim of the actual builder mainly include the theory of factual contract relationship,the theory of subrogation,the theory of breaking the relativity of contract and the theory of return of unjust enrichment.Through the analysis and discussion of these theories,the author believes that the nature of the right of the actual builder to claim the project price to the owner is the right of return of unjust enrichment.The third part,through the analysis of the theoretical circle and the judicial practice circle on the identification of the actual builder,the actual builder should be the actual investment of capital,equipment,materials,labor and other construction people,the validity of the construction contract and illegal subcontracting,illegal subcontractor construction content is the key factors to identify the actual builder,accordingly,Migrant workers and internal contractors shall not be considered as actual builders.As for the actual builder claiming rights to the developer beyond the relativity of the contract,the actual builder can only exercise the right to claim project money to the developer when it is difficult to realize its rights without claiming project money to the developer after completing the obligations agreed in the construction contract.If the actual constructor claims the project payment to the Developer,it shall provide preliminary evidence to prove that the developer owes the project payment.Regarding the scope of the exercise of the right,we should abide by the principle of relativity of the contract and settle the project money according to the construction contract.The fourth part,by combing through the Supreme People’s Court in recent years on the issue of the Supreme People’s Court on the priority of compensation of the actual construction price,analyzes the significance of the priority of compensation of the actual construction price for the protection of the rights of the actual construction,and clarifies the necessity and legitimacy of the actual construction to enjoy the right,the law should clearly give them the priority of compensation of the project price.