Study On The Protection Of Rights And Interests Of Actual Constructors

As a pillar industry in China,the construction industry has become an important part of China’s market economy and an important driving force for sustained and stable economic growth.At the same time,there are also some misconducts in the construction market in practice,such as subcontracting,illegal subcontracting,borrowing qualification and other problems.This has not only caused quality problems in construction projects,but also led to the social phenomenon of a large number of arrears in construction payments and wages of migrant workers,which has seriously infringed upon the legitimate rights and interests of construction enterprises and workers in cities.In the tort dispute of the actual builder,the contractor usually chooses to evade responsibility when the rights of the actual builder are infringed and no relief is available,and the rights of the actual builder are not guaranteed.But at the same time,because the actual builder itself has certain illegality,and because the actual builder lacks the corresponding qualification,when encountering tort disputes,the lawful way to protect their rights and interests is missing,which leads to the actual builder’s enjoyment of the project price can not be satisfied.In this background,it is urgent to establish and improve the existing law on the protection of the legal rights and interests of the actual builder.In order to solve the problem of judicial application of the rules on the protection of the rights and interests of the actual builder,the Supreme People’s Court has issued and revised three judicial interpretations,which clarify the protection of the rights and interests of the actual builder and the specific ways of protection.The relevant provisions of the current regulations and judicial interpretations and judicial cases constitute the main legal basis for the protection of the rights and interests of the actual builders in China.However,the existing laws and judicial interpretations are not clear about the scope of the rights and obligations of the protection of the rights and interests of the actual builder.Reflecting to the judicial practice,there are a lot of "different judgments on the same case" by the local courts on the matters related to the protection of the rights and interests of the actual builders.Even in the judicial precedents of the Supreme People’s Court,there are obvious differences between the cases,which not only reflects that the judicial application standard of the rules on the protection of the rights and interests of the actual builder in China is not uniform,but also reflects that the rules on the protection of the rights and interests of the actual builder itself still have the problem of unclear application.This article is in this judicial application of the background and the status quo,the protection of the rights and interests of the actual builder rules to be in-depth analysis and research.The main text of this paper is divided into five parts.Firstly,the introductory part introduces the background and significance of this paper in detail,and summarizes,analyzes and evaluates the definition and scope of the actual constructor,the basis of the actual constructor’s substantive right to claim the construction money,the actual constructor’s priority right to receive the construction price and the procedural law of the actual constructor’s rights and interests protection.The first part of the main text focuses on the scope and definition of the actual constructor,based on which the special status of the actual constructor in the legal relationship of construction contract and the main content of the actual constructor’s rights and interests in the payment for the construction of the project are clarified.The second part of the main text is the main problems of the protection of the rights and interests of the actual constructor in judicial practice,which points out the problems of unclear criteria for identifying the main body,the lack of protection of the substantive rights and interests of the actual constructor,and the confusion of the protection of the procedural rights and interests of the actual constructor in practice.Based on this,the third part of the text analyzes and concludes that the legal rights and interests of the actual builder,including its right to priority payment of the construction price,shall not be affected by the validity of the contract from the perspective of comparative law,including international law norms,the legal norms of the United States and the United Kingdom of common law and France,Germany and Japan of civil law system.In the fourth part of the main text,the above comparative analysis and jurisprudence analysis are integrated,and the construction path of improving the protection of the rights and interests of the actual constructor is proposed.From the perspective of perfection,this part clearly proposes that the definition and scope of the actual constructor should be further defined by strict standards;the substantive rights and interests of the actual constructor should be protected by improving the right to claim the construction price and the right to be paid in priority;the actual constructor should be given the procedural rights and interests to claim the rights from the contractor by breaking through the relativity of the contract,and the compulsory insurance,credit supervision system and other supporting systems for the protection of rights and interests should be gradually established and perfected.The fifth part of the paper discusses the following points Finally,the fifth part of the text summarizes the main contents and views of this paper.