Contract Relativity Principle And Breakthrough In Judicial Application Of Contract Dispute In Construction Project

The article has its theoretical and practical value. The project construction contract due to the strong professional, industry practices and complex legal relations, is now one of the key and difficult issue for civil and commercial trial. The Supreme People’s Court’s judicial Interpretation concerning the administer justice of construction contract dispute case(hereinafter referred to as the Judicial Interpretation of article 26) breaks through the traditional theory of contract relativity, obligates the responsibility on the developer, but because of the ambiguity, there exist certain confusions in practice. The subject has a certain practical significance Contract relativity is the theory base of contract law.Without the theory there would be no freedom of contract and autonomy, countries generally follow the legislative and judicial practice. But as legislation by the individual standard towards the return of the social standard, the contract relativity from absolute standard to relative one,most of countries admit the breakthrong of theory of contract relativity.But such breakthrough is only regarded as an exception, in the project construction contract judicial application is no exception. The article will deal with difficult problems in judicial practice,with the help of the basic theory of contract relativity and its breakthrough, as well as the theory instruction practice.The framework and the basic content. The article is divided into eight parts.The first part, the judicial interpretation of article twenty-six, the drafting of the contents of the practical significance and practical background,confusion. The actual construction can not contract to contract claim,breakthrough of the privity of contract, has certain practical and theoretical significance, but lead to contracts, illegal subcontracting intensified, violated the terms of the original intention of the development.Therefore, from the theory and practice of the face of the terms of the view layer.The second part, the relativity of contract is the cornerstone of the construction of contract law, is the basic guarantee of freedom of contract spirit, without the privity of contract is not the contract freedom and autonomy. The doctrine of privity of contract followed by the national legislation and judicial practice, our country theory, legislation and judicial practice to follow.The third part, with the development of society, the standard of society on the basis of new countries, from the theory to the legislative and judicial practice are breakthrough the contract relativity. The breakthrough of contract relativity, is conducive to a balance between the interests of the parties to the contract and the interests of the third person. But the contract relativity is principle, the breakthrough should be the exception. The construction contract should still follow this rule, regulation of the judicial interpretation should be the subject of liability, application of article twenty-six liability of nature and scope.The fourth part, the developer, contractor, subcontractor, affiliated person concepts such as strict distinction between, the developer does not include the subcontractor, illegal subcontractor etc. The actual construction do not include individual construction migrant workers, the terms of actual protection contractor interests, resulting in migrant workers can only enter the construction market in the lower end of the employment contract workers identity. Therefore the actual construction of legal person should be strictly registered.The fifth part, the nature of civil liability and the scope of the subject of liability, the developer, contractor shall bear supplementary liability for actual construction people advocate the engineering section, litigation system of right of subrogation with reference, belonging to v. The subcontractor, illegal subcontractor, link it, people who were affiliated people are jointly and severally liable to the actual construction people advocate the engineering section, Department of unjust enrichment of the unreal joint and several liability based on.The sixth part, the actual construction people to a legal contract or subcontract contractor or subcontractor claims for compensation or project cost claim request right, to the subcontractor, illegal subcontracting, link it, people who were affiliated person advocated the project price, for the unjust enrichment claim refund. Based on the efficiency of litigation, the actual construction people claims for the developer of the contractor who without contract,the developer of the contractor right of defense against the actual construction people together, and exercise in a v..The seventh part,but the contract relativity is principle, the breakthrough should be the exception, according to the clause itself from the subject of liability, nature of the liability, liability scope should be clear and perfect.Then according to the clause itself to the absence of supporting systems to improve, through regulating the construction company registration system, building the market employment system and the social security of migrant workers into the scope of the subcontract, prevent illegal subcontracting growing trend.The eighth part of the full text, combing ideas, from the questions, to analyze problems and solve problems, from theory to empirical analysis layer by layer, sticking to the relativity of contract, to improve the breakthrough for the exception, clear terms of judicial application and supporting system.