Research On The Right Of Action Of The Employer To The Employer

Within the Chinese construction project engineering, illegal activities such as subcontracting, illegal subcontracting, and affiliation operation(signing contract under qualifications borrowed from other company)have always been a long standing issue despite repeated prohibitions. The actual constructors who perform the actual construction project become the party under the invalid construction contracts. In order to safeguard the rights and interests of the actual constructors in particular that of the vulnerable groups such as the peasant workers, the Supreme People’s Court upholds the opinion in its judicial interpretations that the actual constructors shall be entitled to sue against the Contract Letting Party. However, such interpretations did not make explicit stipulations on the lawful basis of the peasant workers’ appeal rights, which give rise to various confusions due to the fact that the stipulation is too general, meanwhile substantial problems has been subsequently emerged in law practice. This thesis place particular emphasis on practical perspectives, explore the relevant law issues caused by appeal brought up by the Actual Constructors against the Contract Letting Party, put forward legislative proposals on how to improve the litigation system for the actual constructors. This thesis is consisted by three parts: the preamble, the main text, and the conclusion. The main text is further divided into five chapters.The first chapter starts with the concept of “Constructor” under the Specific Provisions of Contract Law promulgated by P.R.C. After comparison and analysis of the connotation of the Actual Constructor, this thesis concludes that the Actual Constructors are esteemed as one party under the invalid construction contract meanwhile the actual undertaker of the construction project obligations. Analysis is made on the Actual Constructor’s representation patterns in practice, highlighting the groups of the labor contractor and the peasant workers.The second chapter summarizes the contents of the Actual Constructor’s litigation rights, and illustrates that the Contract Letting Party shall be a relative notion, it can not only referred to as the Employer, but also refereed to as the labor subcontractor, the subcontractor, and the illegal subcontractor. The Actual Constructor shall abide by the strict restrictions on them when exerting their litigation rights. In addition, we also discussed the properties and extent of liabilities that shall be borne by the Contract Letting Party to the Actual Constructor. During the litigation procedure of the Actual Contractor, we shall distinguish the litigation status of each party under different conditions.The third chapter explores the legal basis based on which the Actual Constructor to sue against the Contract Letting Party. After illustration made to the enacting process and the legislative background of the judicial interpretations Clause 26, this thesis carried out concrete analysis on four theories such as “Factual Contractual Relationship”, “Exception of the Privity of Contract”, “Right of Subrogation” and “Returning of Unjust Enrichment” and finally concludes that the Actual Constructor’s litigation rights is the special provision made by the Supreme People’s Court to break through the principle of the Privity of Contract so as to safeguard the peasant workers’ interest.The fourth chapter analyzes the current situation of judicature that is applicable for the Actual Constructor’s litigation rights. Actual Constructor’s litigation rights have exerted vital function in safeguarding their interests. But there are still various problems such as the malicious prosecutions made by the Actual Constructor abusing their litigation rights, the arbitrary of the court when register a case, the fact that the Contract Letting Party’s responsibilities is over-aggravated, and the expectancy to safeguard the peasant workers’ interest is disconfirmed.The fifth chapter puts forward legislative proposals on how to improve the litigation system for the Actual Constructors. Taking into consideration of the rights of subrogation system under the civil laws in foreign countries, in the perspective of interpretative theory, proposals are put forward to finalize that the Actual Constructor’s suing against the Contract Letting Party shall be the Creditor’s Right of Subrogation. Legislation shall be improved and the application condition for the Actual Constructor’s suing against the Contract Letting Party shall be strictly carried out, so as to distinguish the relief measures for the protections of rights and interests of two subjects such as the actual constructors and the peasant workers, and reach a balance between the protection and restriction towards the litigation rights of the Actual Constructor.