Study On The Legal Issues Of The Construction Dependent Behavior

The most typical and common illegal phenomenon in construction industry has always been that the actual constructors are affiliated to other units.In the case of affiliated operation,in order to cover up the facts,affiliates and affiliated units tend to disguise the affiliation behaviors with internal contracts and other legal forms,attempting to confuse the concept of affiliation behaviors.In addition,although the construction contracts are invalid because of affiliation behaviors,the legitimate rights and interests of the affiliates should be protected when the contents of construction projects have been actually completed.However,in China's current laws and regulations,the absence of specific criteria for affirming the affiliation behaviors in construction projects,and the unclear interpretation of the protection of affiliated units' lawful rights and interests,have led to confusions on the application of laws,the ways to handle disputes,etc.in trial practice,especially when dealing with the controversies involving construction projects.Moreover,the practical circle has not worked out a unified understanding of the legal application of such issues,thus resulting in the phenomenon of identical lawsuits with varied judgments.It not only harms the fairness,the unity and the efficiency of judicial trials,but also is not conducive to the protection of legitimate rights and interests of the affiliated units.In a nutshell,the mentioned problems has seriously damaged the harmony and the stability of our society.Starting with the real and representative cases that the author has encountered in the process of judicial trials,this article analyzes and demonstrates the main controversial issues reflected in these cases,that is,how to distinguish the internal contracts and the affiliation behaviors when judging disputes relating to construction contracts? How do the affiliates claim payments to the contractors and the employers? Can the affiliates enjoy the priority right to be repaid? Through the analysis of the controversial issues,the author puts forward the main methods to distinguish the internal contracting from the affiliation behaviors;argues that the affiliates can claim the payments from the contractors according to the request for contractors' returning unjustified enrichment,and the affiliates who borrows qualifications can claim the payment from the employers as the actual constructors and enjoy the priority right to be repaid.This paper falls into four parts.The first part is the introduction of the case.It describes in detail the typical cases relating to affiliation behaviors which have been handled by the author,that is,a brief introduction of the case that Tan Peiliang sues Nornova and China Mobile Chongqing Branch for contract disputes.The second part states the focus of the controversy.It mainly includes the following aspects: how to identify the legal relationship and the basis of claim between Tan Peiliang and the Nornova;how to identify legal relationship and basis of claim between Tan Peiliang and China Mobile Chongqing Branch;whether Tan Peiliang enjoys the priority right to be repaid,etc..The third part concentrates on the comments and analysis of the focus of disputes related to such case.Firstly,this part expounds the ways to determine legal relationship and basis of claim between Tan Peiliang and Nornova,and analyzes similarities and differences between internal contracting and affiliation behaviors in detail,thus expecting to correctly identify the affiliation behaviors under the disguise of internal contract,and put forward the idea that in the case of invalid affiliation,the affiliates' claim to the contractors is equivalent to the request of unjust enrichment.Secondly,how to determine the legal relationship and claim basis between Tan Peiliang and China Mobile Chongqing Branch is elaborated.It is proposed that there is no actual contractual relationship between the affiliates and the employers,therefore,the affiliates can only claim rights as actual contractors according to Article 26 of the Interpretation of Cases Involving Project Construction Contract Disputes,which also equals to the request for unjustified enrichment.Finally,whether the affiliates enjoy the priority right to be repaid is analyzed,and the author presents the idea that the affiliates should be recognized as the subjects of the priority right to be repaid.At last,the suggestions to this case are proposed.Combining with the basic situation of such case and on the basis of the above analysis of legal issues,the author puts forward new opinions on the handling of this case,and hopes to provide help for the adjudication of disputes over construction contracts which are involved with affiliation behaviors.