Research On The Problems Of Actual Construction Personnel Exercising Subrogation Rights And The Validity Of Construction Contract

The Judicial Interpretation of Construction Contracts(1)gives the actual constructor the right to claim the project money from the contractor.To a certain extent,the interpretation safeguards the legitimate rights and interests of the actual construction workers and solves the problem of the wage arrears of migrant workers..The Judicial Interpretation of Construction Contracts(2),which was implemented on February 1,2019,made certain amendments to the Judicial Interpretation of Construction Contracts(1).Article 25 clarifies the actual construction person's right of subrogation.However,because the system of subrogation of creditors in China is still not perfect,it is not known whether the actual constructor can achieve the purpose of safeguarding his legitimate rights and interests in the suit of subrogation.According to the current regulations,no construction qualification is one of the main reasons for the invalidity of the construction contract.Similarly,borrowing qualifications and exceeding qualifications can also invalidate construction contracts.The state's requirements for construction qualifications not only have strong planned economic attributes,but also reflect the mandatory intervention of administrative forces on the market.The purpose of construction qualification is to ensure the quality of the project.However,it can be seen from past experience that even if the state has stricter requirements on construction qualifications,the phenomenon of unqualified engineering quality still exists.Moreover,since the construction contract is a typical civil legal act,it should follow the basic theory of civil legal behavior.Therefore,borrowing the qualification to conclude the construction contract(hereinafter referred to as the anchor)is a typical borrowing behavior,of course,should also be borrowed.The relevant theory of the name behavior,the law directly stipulates the construction contract under the anchor as invalid,and some are not proper.Therefore,it is necessary to reflect on whether the violation of the construction qualifications will inevitably lead to the invalidation of the contract,and how the validity of the contract for construction under construction is consistent with the theory of thetheory of borrowing.