| The doctrine of relativity of contract is the foundation and the premise that the rule and system of the contract law establish on, It contains the relativity of subject,content,responsibility and so on, It is a rule that passes through the theory of the contract law and practice, It is the foundation stone of contract legal system.The doctrine of relativity of contract is accepted by countries of civil law system and Anglo-American law system since it's origin ,and was developed further .But, the controversy of the contract law 's death was broken since the 1970's which have initiated suspicion of the basic principle of the classical contract law and the value which it manifests, also it have caused the widespread arguments whether continue to offend the doctrine of relativity of contract or not .It is not only usually said that the doctrine of relativity of contract is on the dominant position, but also some suitable exceptional cases was acknowledged.Building trade is one of the dominate industries of the national economy. The protection of peasant laborer's rights and interests and the quality problems of the construction project puzzle the construction area continuously. Process it appropriately or not will be very important to the stability and advancement of the social economy. Among them, the phenomenon of the subcontracted work is very universal because of the disorder of our country's construction market, it directly causes the inferior quality of the construction project and the peasant laborer's wages belated. Regarding this, the State Council makes the special deployment to clean up the construction project funds and the peasant laborer's wages, and the《Interpretation on the law Application in the Trial of Cases Concerning Disputes over Working Contract for Construction Project》(the later word to be called《Explanation》) was read by the Supreme People's Court in 2004, which made the stipulation of the rights and obligations of the actual constructor ,the party issuing contract and subcontractor or the alienator, and also provide Legal basis for the solution of dispute of the construction subcontract. But the provisions of the《Explanation》also has some problems in the legal science theory and the practice. This article takes the theory of the relativity of contract as an angle of view ,to explain the stipulations of the 25th and 26th clause of the《Explanation》,and it must be of the value of theory and practice.In the first part, Not only the origin and development but also basic contents and value of the doctrine of relativity of contract are briefly introduced .And the author analyzes the reasons of breakthrough of the doctrine of relativity of contract.The second part discusses questions on the subject of the construction subcontracted at first, and think it include the actual constructor,the party issuing contract and subcontractor or the alienator. They are all the subjects of the contract, which directly manifest the doctrine of relativity of contract. Next, the validity of the construction subcontract or the illegal sub-contract are discussed .The traditional contract invalid theory believed that, the contract which violated the compulsory legal stipulation is invalid, the contract invalid is ab initio,affirmatively,absolutely and naturally invalid. But, from the angle of potency of the invalid civil behavior and the goal of design value of the invalid contract system, the construction subcontracted is not invalid absolutely, and must be acknowledged to be effective in a certain degree, which is more advantageous to protect the contract litigant's rights and interests. Once more , the direct right of action of actual constructor break through the doctrine of the relativity of contract . Finally , the author defines the protection of the rights and interests and the problems about the carrion of the 26th term of the《Explanation》.The third part elaborate the system of maintenance of the construction quality and the responsibility. The 25th term of the《Explanation》entrusted the party issuing contract the direct right of action of the alienator with quality problem and break through the doctrine of the relativity of contract .Although the protection of construction project has not defined in the《Product quality Law》, but the《Consumer Rights and interests Protection law》has established the home-buyer's consumer's subject status. If the quality problem happened, the home-buyer might break through the doctrine of relativity of contract and carry out the direct right of action of the actual constructor.The forth part Firstly, the constructor and the general contractor undertake the joint and several liability to the party issuing contract because of the quality of project. and to analyze the relations of the joint and several liability and the doctrine of the relativity of contract .This article agree that the constructor undertake the joint and several liability to the party issuing contract also break through the doctrine of relativity of contract, which is different from the system of coexisting debt . The joint and several liability of the actual constructor is similar to the constructor's ,which also has the legal basis according to the《Explanation》. Finally, this article has made the analysis to the modern value of the joint and several liability, and we should reduce the use of the joint and several liability with the development of the social economy. |
