The Reflection On The Article 26 Of “The Judicial Interpretation Of The Supreme People's Court In The Trial Of Disputes Over Construction Contracts”

In recent years,with the rapid development of China's construction industry,Serious shortage of professional construction talent has become a key issue hindering the healthy development of the construction market,resulting from illegal shift of contract,illegal subcontracting,Insufficient qualifications enterprise affiliated etc,Gradually appears a new practitioner-the actual construction party.This group usually refers to main project actual construction group who itself does not have the construction engineering qualifications or by the method of shift contract,subcontract,affiliated,etc.signed a construction contract with project contractor.However,the actual construction party due to the existence of deficiencies qualifications,often lead to the final acceptance of the construction project failed,the project fund can not be settled in time,the construction staff casualties and other law problems,which is the root why there is a large number of migrant workers to visit for salary.In order to further expand the channels of protecting the rights and interests of the actual construction party and maintain social stability,to solve such problems,the Article 26 of the “Supreme People's Court Judicial Interpretation of Construction Contract “ came into being,giving the actual construction party lawsuit rights of break the contract relative,asking for project debt,but in the judicial practice,construction project disputes is complexity of the law relationship,the relevant laws and regulations on the definition of actual construction party and on the responsibility between contractors is not clear enough,leading to the unclear that the judicial authorities in the specific case of the facts and legal application,there is always unclear responsibilities between actual construction party and other construction party,the actual construction party' scope of right was defined unclear which legal dispute.It is difficult to fully protect the main parties legitimate rights and interests.Therefore,the important foundation and method to protect main parties including actual construction party and migrant workers legal rights and interests is to clarify the legal relationship between the actual construction party and contractors and is to improve the relevant entities and proceduresThis article intends to proceed from the existing legal provisions,judicialinterpretation,combined with the practice of judicial trial,making a comprehensive analysis on the problems arising in the article 26 of “Supreme People's Court Judicial Interpretation of Construction Contract”The article is divided into four parts,the main contents include:The first part: from the provisions of Article 26 in “Supreme People's Court Judicial Interpretation of Construction Contract”,clear the confirmation and interests protection of the actual construction party from legal levelThe second part,by analyzing the current situation of the law application in the rights and interests protection of the actual construction party ‘,finding out the problems that cause the actual construction party definition unclear,that break the contract relativity and so on in the practice of law application,and summarizing the excessive protection to the actual construction party in the judicial practice.The third part: In-depth analysis of article 26 in ”the Supreme People's Court judicial interpretation of construction contract “find out the problems and,caused reflection,future legislation and The Direction of Correction in Judicial Practice because of the over protection to the actual construction party.The fourth part: reconstruct the legal status of the actual construction party,according to the previous analysis,from two aspects which are perfect system and the law application to make recommendations on protection of the actual construction party in order to suggest the reasonable proposal.The article mainly adopts the method of induction analysis,comparative analysis,and takes the provisions of Article 26 of the Supreme People's Court judicial interpretation of the construction contract as the foothold.The author,analyzed the problems of the actual construction party in the field of illegal shift contracting,illegal subcontracting and Insufficient qualifications enterprise affiliated etc,concluding the definition,scope and the methods of rights and interests for the actual construction party.Finally puts forward some suggestions on how to protect the actual construction parties' rights and interests reasonable in the judicial practice.