Study On The Legal Applproctication Of The Protection Of The Rights And Interests For The Actual Constructor

The notion of the actual constructor is that without any administrative lieense or govental qualification,the actual constructor signs a constract with the contractor and engages in a construction project. Due to not having a qualification, the actual consructor will be faeed with the litigations of clearing of contract price or those of compensation for injuries and deaths during the performance of the contract. When the court dealling with these legal disputes, many problems appear in the applicable law. For example, it is difficult to distinguish the actual constructor and a variety of constructors in practice. It is not clear for the actual constructor to advocate their rights. There two reasons cause the problem, the one is theoretical research is not thorough to make guidance for practice, the other one is relevant laws and regulations which are concerned with the type of actual constructors and the responsibility of the project employer are ambiguous. They are disjointed with the complex building relationship. To solve the problem of legal application, we need to make clear the relationships between the actual constructor and the employer in theory and figure out the legal basis for the actual constructor to claim rights. By perfecting entity norm and procedure norm, we can provide operational basis for legal application.This article is divided into five parts, the concrete content is as follows:The first part are the current situation and problem of legal application about the protection of the actual constructor. The paper points out questions in the applicable law by analysising of he current situation about the protection of the actual contructor and combining with relevant cases. Questions are the legal status of the actual contructor is unclear, the right and obligation is fuzzy and the way to claim right is controversial. Because of these problems, it is confused in the law application in the judicial practice.The second part are the reasons about the above problem. In the aspect of legislation, the provision of the actual constructor is too simple to guiding practice. In the aspect of theoretical research, scholars have divergent opinions about the theoretical basis of the actual constructor to proposal rights. It mainly includes the theory of fault liability, the theory of returning the unjust enrichment, factual contract theory and breaking the contract relativity. Theoretical controversy cannot provide a clear guidance for the law application.The third part analysises the legal basis about protection of the actual constructor. The paper makes clear that the responsibility of the employer and the contractor is based on the different theory by analysising of the the relationship about the employer, the contractor and the actual constructor. Combining with the theory of civil law, the paper holds that the employer’s responsibility is actually breaking the contract relativity. Because the contract between the contractor and the actual constructor violates the prohibitive provisions of the law and regulation, so it is invalid. The actual constructor can require the contractor to shoulder the responsibility according the contact.The fourth part analysis concrete condition about the protection of the actual constructor’s right and interest in practice. When protecting his rights and interests, we should strictly limit the scope of the actual constructor to prevent he abusing of rights and interests. The paper holds that internal organization of the construction enterprise, the subcontracting organization, migrant workers do not belong to the category. The actual can’t be entitled to the priority right on the fund of construction project by analyzing its nature.The fifth part puts forward relative suggestions in terms of entity and procedure by the above analysis. In the aspect of procedure, it is necessary to define the way of the actual constructor claiming his right and impose restriction on his right. In the respect of entity, it is necessary to define the responsibility of the employer and the scope of the project payment. At the same time,by drawing lessons from foreign guarantee system in the field of construction engineering, the paper suggests to set up corresponding guarantee system in our country to ensure the payment of the project from the source.