Research On The Legal Issues Of Actual Construction Workers In The Construction Project Construction Contract

The actual constructors including construction teams,migrant farmers,the individuals refer to those who invest services and raw materials in the project when the construction contact for project between the employer and the contractor,the contractor and the subcontractor or the constructor is invalid.However,the actual constructors must be able to have an independent right of claim to the construction project payment.The conception of the actual constructors is so clear that the article 26 of “Interpretation of the Supreme People’s Court on the application of law in the trial of disputes over construction project contract”(hereinafter referred to as "judicial interpretation")will be implemented.That is,the actual constructor can claim rights to the employer,which is also an embodiment of the protection to the interests of migrant farmers.This avoids the legal obstacles on the subjective qualification when the actual constructors claim their rights.At the same time,the rights and responsibilities of the actual constructors need to be further clarified.Firstly,the actual constructors should only be the third party to the construction contract parties;second,the identity of the actual constructor as the third party should be clarified through the“judicial interpretation” so that the actual constructors can become the third person legally;third,the identity of the actual constructor is relative.“judicial interpretation”should narrow the interpretation to limit the specific circumstances for the actual constructors to achieve its rights.That is,the actual constructors can claim its rights only if its factual interests are affected when the contract is changed,dissolved,suspended,terminated or canceled by the contractor.In addition,the responsibility of the employer to the actual constructor should also be clarified,for the terminal beneficiary is the employer after the actual constructor accomplish the project through a series of raw materials,services and so on.According to the principle of equality and reciprocity of rights and obligations,if the employer fails to pay for the project,the employer shall bear the responsibility to the actual constructor,in which “owing project fund” refers to the payment owed by the employer.This is based on the construction contract signed by the employer and the contractor.If the project is not completed,it may be negotiated or approved by the third-party evaluation agency,while if there is no agreement,the owing fund should be in accordance with the actual assessment results.In reality,whenthe actual constructor prosecutes the employer to assume the responsibility,it only needs to provide the evidence of remuneration of the employer(the contractor or the illegal subcontractor).As for the employer,in order to waive its payment obligations,the settlement of the project and the proof of the specific amount of owing need to be provided.Thus,the system for the actual constructor can be operated.In addition,the remuneration of the actual constructor of or the project settlement should be in accordance with the original agreement.If there is no agreement and the consultation fails,the project should be evaluated according to the amount of accomplish.As to the management fee for the contractor(subcontractor or illegal subcontractor)and the person in charge,it should be collected or supported according to the specific circumstances.Under the premise of the valid contract between the contractor and the employer,the employer has actually participated in the construction and management of the project so that the management fee shall be properly rewarded to the employer.On the contrary,the employer should confiscate the management fee.