Practical Legal Issues Of Actual Constructor

At the beginning of 21 th century,the management of construction industry was confused,the subcontracting,illegal subcontracting and attachment phenomenon were inundant,the problems of engineering funds had become increasingly prominent and the salary payment of bottom migrant workers was more and more serious.The migrant workers failed to get salary and went to petition,even some migrant workers took suicide,etc,aggressive behavior to ask for salary,and this had become the problem of most difficult to be solved by government at all levels.Therefore,the judicial committee of the Supreme People's Court approved and issued Interpretation of the Supreme People's Court on Applicable Law Problems of Trial Construction Contract Dispute Cases(hereinafter referred to as the ‘Interpretation')on September 29,2004.Interpretation first put forward the concept of actual constructor and at the same time,it gave the rights to actual constructor to claim the engineering funds under specific circumstances,what protected the interests of actual constructor and migrant workers,and caused a good social effect.However,Interpretation failed to give clear definition to actual constructor,nor gave specific regulations on the right of actual constructor breaking through the relativity principle of obligation to claim engineering funds to the contract-issuing party,in addition,it failed to make regulations on whether the actual constructor has preferential compensation right to engineering funds,similar with the contractor,what caused that in judicial practice,the identification was different and affected the judicial authority.At the same time,after many years of implement Interpretation,the background of the times has changed,so it is worth thinking that in trial practice,how to grasp and apply the relevant regulations of actual constructor.This paper is based on above problems to explore the relevant problems of actual constructor involved in specific trail practice.This paper includes four parts,the first part analyzes and defines actual constructor,cleared the concept and expression form.The second part analyzes the right of actual constructor breaking through the relativity principle of obligation to claim engineering funds to the contract-issuing party,to explore the theoretical basis of the right,to obtain the conclusion that the right basis is unjust enrichment legal relationship and the law of subrogation system is applicable;from the perspective of interpretivism to demonstrate whether actual constructor has preferential compensation right to engineering funds,and puts forward the view that actual constructor can claim the right under specific conditions.The third part is to explore and analyze the typical problems in practice by combining with judicial practice,and proposes the views.The fourth part is author's suggestions for the improvement of relevant norms of actual constructor.