The Research On The Identification Of "Actual Constructor" And Protection Of Its Rights And Interests

China's construction industry is in a period of vigorous development,and there is a long-term situation of oversupply.However,due to the particularity of the industry,the qualifications for construction companies are high.Many enterprises,organizations and individuals with low qualifications and qualifications rely on complete qualifications.Enterprises use illegal subcontracting,illegal subcontracting,borrowing qualifications(attaching)to undertake projects and digest excess capacity.The project has been subcontracted and illegally subcontracted,and the profit of the project has been exploited at various levels.The cost of the actual contractor's actual construction has been reduced,and only the work can be cut and the project quality problems,engineering disputes,etc.One of the most intriguing issues is the social problems caused by the arrears of construction funds that have caused the loss of the interests of the majority of migrant workers.Based on this,the Supreme People's Court promulgated the Interpretation(1)on the applicable legal issues concerning the trial of construction project construction contract disputes in October 2004(hereinafter referred to as “Explanation 1”),and at the same time initiated the new “Actual constructor”.The concept provides standardized guidance for the unified administration of justice in order to protect the "Actual constructor" and the interests of Actual constructor and maintain social stability.Since the promulgation of "Explanation 1",it has indeed played a very good social effect and legal effect,but the judicial and academic circles have always given the "Actual constructor" and "interpretation 1" Article 26,paragraph 2 directly The Actual constructor has more controversy in prosecuting the contractor with the right to appeal.For example,the conditions for the identification of the “Actual constructor”are not clear,the principle of breaching the principle of contractuality lacks the legal basis,the awareness of restraining the contract,and the generation of negative incentives.Therefore,on October 29,2018,the Supreme People's Court passed the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Construction Project Construction Contract Disputes(II)(hereinafter referred to as "Explanation 2"),which is insufficient for Interpretation 1.The content has been refined and refined,which has played a better guiding role in the unified judicial system.Although "Explanation 1" created the new concept of "Actual constructor",it was clear that the "Actual constructor" claimed the right to the contractor with the right to appeal,and it did play a certain role,but the "Actual constructor" and the supporting norm as a The new system,its provisions are imperfect,and encountered many problems in judicial practice.For example: What is the definition of “Actual constructor”? How do you identify the "Actual constructor" ? There are several manifestations of “actual construction people”? Many other issues need to be clarified.Therefore,in order to solve the above problems,the author intends to use literature review,comparative analysis and empirical analysis to study and discuss the core issues such as the definition,qualification conditions,manifestation and legal status of “actual construction workers”.The protection of the interests of the Actual constructornel in this article will discuss the "real construction workers" system from the following aspects.The first part mainly discusses the legal connotation of "actual construction people".First introduce the legislative background of the “real construction workers”.Secondly,the definition of“Actual constructor”is discussed.The differences and connections between “construction man”and“Actual constructor”are analyzed and compared,and several definitions of “Actual constructor” in academic circles and judicial practice are summarized.I put forward my own point of view.Finally,the definition of “Actual constructor”is analyzed through the definition of “Actual constructor”.The second part mainly discusses the expression form of “Actual constructor”.According to the "Architectural Law","Interpretation 1" and judicial practice,the author summarizes the three forms of "real construction workers",namely,illegal subcontracting,illegal subcontracting and borrowing qualifications(attached),and The meanings,constituent elements and legal consequences of the three manifestations were analyzed.The third part mainly discusses the legal basis of the "Actual constructor" litigation right.In accordance with Article 26 of Interpretation 1,the “Actual constructor” is given a discussion on the legal basis of the right to appeal against the relativeity of the contract and directly suing the contractor,summarizing the main three theories of the academic circle,namely the factual contractual relationship,improper Reli said that the right of subrogation said that the subrogation right was supported in the newly promulgated Article 25 of Interpretation II.Finally,in combination with the above doctrine,the author talked about his own views.The fourth part mainly discusses the legal status of each subject in the legal relationship of “Actual constructor”.It is pointed out that in the legal relationship of “actual construction workers”,there are mainly civil entities such as the contractor(owner),subcontractor,illegal subcontractor and “Actual constructor”,and the “actual construction workers”are discussed separately.The legal status of the subcontractor or the illegal subcontractor and the contractor.The fifth part mainly discusses the restrictions on subcontracting,illegal subcontracting and borrowing qualifications.The author points out that the construction contract is invalid because of violations of the egal mandatory provisions of subcontracting,illegal subcontracting and borrowing of qualifications(attachment).Therefore,they must be restricted from the source,so the author put forward restrictions on the expression of the three "actual construction people" in combination with laws and regulations.The sixth part mainly discusses the new measures to protect the interests of“real construction workers”.The author proposes three new measures to protect the interests of“actual construction workers”from the procedural and substantive laws.They are the reasonable distribution of the burden of proof,the guarantee system and the engineering insurance system.The author has separately discussed the three new measures.