Study On The Protection Of The Actual Constructor’s Rights And Interests

In recent years, many scholars discuss how to protect the rights and interests of the actual constructors.Although this is not a fresh topic,it also has importance to study,because the phenomenon of actual constructors still have a lot of problems,so it is important on how to protect the interests of the actual constructor.In order to protect the actual constructor,our country devised the interpretation of how to hear the some problems of contracts for construction projects,for short “ "Interpret ion" at 2004.But this law still have many problems in judicial practice,for example,what is the actual construction? how to remedy on earth? The law and its interpretation of these issues are not clearly defined. Also in the judicial practice, agent phenomenon of the actual constructor has intensified, and this issue did not give clear explanations on legislation, which also led to the court in the judgment appeared in a dilemma situation,for example,if actual constructor has not assignment of graduates,but the judge decide to let the actual constructor or company take responsibility,it is not good for actual constructor. So It is very important to define the elements of the actual construction, the relevant judgment criteria, which can help the rights of actual constructor.This thesis point out that it is very important to definite the actual Constructor. More-over,current law is not enough to protect the actual constructor.This thesis combines the current background and practice problems to put forward how to protect the rights and interests of the actual constructor.Based on the viewpoint,this thesis defines the scope of actual construction, to elaborate the protection of the actual construction in the existing legislation, and according to the actual constructor, discuss the actual constructor of saw agent phenomenon and the price of construction projects, priority issues, put forward how to protect actual constructor in legislation and practice.This thesis adopts the methods of normative analysis, comparative analysis and specific case analysis to interpret the provisions how to protect the actual constructor. Combining the conception in the practice and the theory,this thesis put forward how to definite the“actual constructor”.By comparing the breakthrough contract relativity and right of Subrogation to explain the theory of the provision of Interpret ion.The author has a wealth of experience on the contract area,so this thesis adopt specific case analysis to study the assignment of graduates,in order to point that it is important to define the relevant judgment criteria of the assignment of graduates.This thesis mainly form how to define the actual constructor,how to protect the actual constructor,how to deal with the problems of assignment of graduates and the priority right of price. According to these problems,the author puts forward some suggestions form the perspective of foreign legislation. This thesis mainly divided into three parts,it’s main content as follows:First,this thesis mainly definite the actual constructor and put forward the special nature of the actual constructor. On the basis of the scope of the actual constructor, the thesis mainly to solve the problem of the actual construction.Second, this part mainly to discuss how to reflect the protection of the the actual constructor on the existing legislation and how to protect the rights and interests of the actual constructor. There are include two aspects.Firstly, this thesis mainly analyzes how to protect the actual constructor on the "contract law". At the same time, this thesis analyzes the breakthrough of the contract relativity and the "contract law" in the subrogation system.Secondly, this thesis mainly analyzes the existing problems of the actual construction and how to deal with them. The apparent agency problem of actual construction is difficult to judge, the court judge them based on some scholars and practice. It points out some disadvantages to the actual construction. In this thesis, the author summarize the existing disputes to point out the causes of these disputes, and analyzes how to better protect the rights and interests of the actual construction.Third, this part puts forward how to improve the protection of the rights and interests of the actual constructor in our country. There are two aspects.Firstly, This thesis discusses the necessity of the actual construction under the current situation. Secondly, this thesis draw lessons from foreign legislation to protect the actual constructor. At the same time, this thesis points out that drawing lessons form foreign legislation must be combined with the existing environment and system in China.If not,the results will be the opposite.