Study On The Right To Claim The Project Payment By The Actual Constructor

In order to protect the lawful right and interests of migrant workers better,solve the livelihood problem and maintain social stability,the Supreme People's Court promulgate a decree that the actual constructor have a right to ask for developer to pay the project payment(hereinafter referred to as the article 26(2)of law interpretation of [2004]14).Nevertheless,the clause is too principled to suit real cases,which causes many disputes in practice,although it provides an effective way to protect the right of the actual constructor.If we want this clause to play a role in protecting the right of the actual constructor,we need to discuss the clause in legal and value aspects,dig into the potentials of it,and provide the basis for the protection of the actual constructor.This is the theme of this thesis and the author divides it into five parts,which are the legal basis of claim,the definition of the holders of rights,the definition of the subject of obligation,the nature of the responsibility of the developer and the execution of right.Part one: The legal basis of claim.First,the author elaborates the main points of the legal basis of the clause,which are the theory of contract relativity principle subdued,the theory of factual contract,the theory of claim on ill-gotten gains,the theory of liability for wrongs,the theory of the right of migrant workers' protection,and the theory of subrogation right.Above the point of views,the author gives her own comments.Secondly,the author elaborates whether the right of subrogation is the legal basis of the clause or not.Not only is the expression of the clause highly similar to the provision on the right of subrogation but also can justify itself.At the same time,it can avoid the actual constructor abusing the right.Part two: The definition of the holders of rights.The author distinguishes the constructor from the actual constructor at first by discussing the characteristics of the actual constructor.Next,the author discusses the typical manifestations of the actual constructor which include transfer contractor,contractor of illegal subcontractors,affiliates.After that,the author discusses the types that do not belong to the actual constructor,e.g.migrant workers,project manager.Part three: The definition of the subject of obligation.Whether the developer is the construction side of employer,or not? Does the actual constructor have the right of recourse? There are different opinions in practice.To solve these issues,we should define the developer.In the author's opinion,according to the right of subrogation,the developer dose not represent the construction side of employer and the actual constructor dose not have the right of recourse.Part four: The nature of the responsibility of the developer.Is it joint liability,supplementary responsibility or independent responsibility? It is also a controversial issue and the court makes different judgments according to the different views.This part is mainly discussed the nature of the responsibility of the developer,and in author's opinion,the developer takes independent responsibility.Part five: The execution of right.The actual constructor can break relativity of the contract in certain conditions.In this part,the author discusses what these conditions are and how the actual constructor to use the right.Next,the author discusses how to determine the project payment,including the basis of calculation and the scope of the project payment.In author's opinion,the actual constructor should exercise their rights through litigation.The project payment consists of direct cost,indirect cost,tax and profit.