The Legal Dilemma And Way Out Of The Protection Of The Actual Builder’s Rights And Interests In Construction Projects

Since the COVID-19 outbreak in 2020,the slowdown in national economic growth and the combined influence of policy factors have led to the overall downturn in the real estate industry,which has led to a large number of construction contract disputes.Due to strict qualification supervision and low technical threshold for actual implementation in the field of construction engineering,a large number of subjects without corresponding qualifications are subcontracted or illegally subcontracted to become actual builders.Due to the lack of contractual relationship with the developer,once the industry is depressed,the developer does not pay the project payment in time,and there are many legal difficulties in claiming the project payment.And because it represents the rights and interests of migrant workers,it is easy to cause social problems once it is not handled properly.Therefore,the research on the actual builder is helpful to clarify the relevant legal problems and provide reference for the perfection of the legal system.The research on the protection of their rights and interests is conducive to protecting the rights and interests of migrant workers,alleviating social problems and promoting social harmony and stability.In addition to the introduction and conclusion,this paper is mainly composed of four parts.The first part traces the legislative source of the actual builder,tracing the first expression of the actual builder in the judicial interpretation of construction engineering in2004,and the adjustment of the judicial interpretation to the actual builder system after the promulgation of the Civil Code in 2020.A legal person,natural person or other organization that clearly defines the actual builder as whether he or she independently invests funds,equipment,materials and other business materials,undertakes business risks independently,and makes independent settlement with the contractor;The typical subjects in practice are classified into two categories: those who can be identified as actual builders and those who cannot.The second part discusses the legal dilemma of the protection of the actual builder’s rights and interests.The legal dilemmas of the protection of the actual builder’s rights and interests can be divided into the qualification dilemmas of the subject and the legal relief dilemmas.The dilemma of the subject’s eligibility determination is manifested in that the law does not define its connotation and extension,which leads to the lack of judgment standards in judicial practice,and the difficulty in identifying the identity of the final contractor who is affiliated,multi-level subcontracting and multi-level illegal subcontracting.The predicament of legal relief is reflected in the lack of protection of the right of compensation for the priority of construction project price,the disagreement between the right of action and arbitration,and the unclear distribution rules of burden of proof.The third part discusses the necessity and significance of the protection of the actual builder’s rights and interests.The significance of protecting the rights and interests of actual builders lies in respecting human rights and practical needs,and the inevitable requirement of realizing the substantive justice of law.Protecting the rights and interests of the actual builders is conducive to the healthy development of the construction industry,economy and society,and has positive significance for improving the socialist legal system.The fourth part puts forward the solution of protecting the rights and interests of the actual builders from the legislative path and the judicial path.In terms of the legislative path,the law should clarify the connotation and extension of the actual constructor’s main body,clarify the scope of the subject of priority compensation,protect the owner’s right of defense,and establish a relevant system to ensure the normal payment of the construction project price.In terms of the judicial path,according to whether the relativity of the contract is broken,the actual constructor claims to the opposite side of the contract,or obtains the legal creditor’s right to the owner according to the assignment of creditor’s right,and then claims the right,that is,the relativity of the contract is strictly observed.The use of the existing system of the actual builder to claim rights to the owner is to break the relativity of the contract;The rights and interests of legal affiliators should be protected,and the priority of compensation for construction projects should also be properly protected.