Judicial Confirmation Of The Exercise Of Subrogation Right In Construction Contracts Of Construction Projects

For the absence of explicit provision of the actual constructor in the Interpretation of the Supreme People's Court on the Issues Concerning Application of Law for the Trial of Cases on Disputes over Contracts on Undertaking Construction Projects and its narrow protection scope for the actual constructor,it is not conducive to protect the rights of the actual constructor.Therefore,the study of the application of the system of subrogation right in the cases of disputes over contracts on undertaking construction projects is helpful in determining the subject of actual constructor,protecting the interests of the actual constructor and improving the relevant provisions in the field of construction contract.In this case of construction contract dispute,Yang* took proceedings against ecological agriculture development limited liability company A and construction limited liability company B.The disputes between Yang* and the two companies mentioned above were concentrated on the following points: 1).Whether Yang* was the actual constructor.2).Whether Yang* had the subrogation rights to the ecological agriculture development limited liability company A.3).Whether the two companies mentioned above shall bear the debt responsibility.In dealing with construction contract dispute cases,the subject of the parties shall be first clarified,and the laws and regulations and judicial interpretations applied,in line with the subject nature of the due party,shall be beneficial to the actual constructor.If the laws,regulations and judicial interpretations related to the construction projects are not applicable,other laws regulations and judicial interpretations shall be applied to protect the rights of the due party.In this case,although Yang* was the actual constructor,when the provisions of judicial interpretation were not applicable to Yang*'s claim for margin,the system of subrogation right for creditors shall be applied to protect Yang*'s rights.This paper attempts to make a proposition that a new judicial interpretation shall be rolled out stipulating that if there are relevant creditor's rights generated by the actual constructor in the proceeding of the construction projects,the actual constructor may exercise subrogation right to the contractor,subcontractor and illegal subcontractor to better protect his legitimate rights and interests.