On The Limitation Of The Right Of Actual Construction Personnel To Sue The Developer

The principle of contract relativity plays an important role in activating and maintaining the market transaction order,as a fundamental contract principle recognized by domestic and foreign theories and judicial practice.But with the prosperity of commodity economy and the development of economic globalization,it is constantly impacted by practical needs and other rules.Published in 2004,the supreme people's court by the supreme people's court on the trial of construction project construction contract dispute case applicable law question the interpretation of the second paragraph of article 26 to the actual construction are suing because there is no contractual relationship of the developer in owe responsibility within the scope of the right to pay project payment,but the rule definition and scope of actual construction people fuzzy without limit,found in the10 years of judicial practice,there is abuse of actual construction identity that does harm to the interests of the client's malicious,false charges,disrupt the normal order of construction market and eventually also makes it hard for the interests of the migrant workers to get effective protection.Therefore,in order to maintain the legitimate rights and interests of all parties,maintain the normal order of construction market and save judicial resources,it is necessary to restrict the application of the breakthrough of contract relativity.In the first part,it introduces the basic concept,historical evolution,theoretical value and practical function of the principle of relativity of contract.Extension contract relativity principle of contract freedom principle and basic meaning of contract mainly in particular legally binding between the parties,only the parties to a contract based on contract to the other party or at the request of the litigation,and not to the third party puts forward contracts no contractual relationship with the request,also it cannot set contractual obligations for the third person without authorization.The principle of contract relativity has the relativity of contract subject,content and responsibility.The second part makes a comparative analysis of the value of adhering and breaking the relativity principle of contract,and deepens the measurement of the value of both aspects.Contract photograph sex principle is an important recognition of contract law and property law point,determine the law of contract of creditor's rights with legal relief way,maintaining autonomy to realize the contract purpose,the parties to ensure transaction security,to build a good faith society and protect the rights of a third person free,but you can break the contract relativity principle to promote and maintain the commodity economy development,protecting the legal rights and interests of a third person,and simplify the judicial process,saving the judicial resources.The third part introduces the contract relativity principle of sticking to breaking through the embodiment of the legislation and judicature in our country,embodies the legislation is the eighty-fourth law of the People's Republic of China civil law,the first article law of the People's Republic of China contract law and so on,the breakthrough of legislation is the two hundred and twenty-ninth law of the People's Republic of China contract law,the regulation of ownership of the lease item in the change does not affect the validity of the leasing contract and the seventy-third regulation law of the People's Republic of China contract law,the obligor delayed in exercising its creditor's right due to damage to creditors.The creditor may request the people's court to exercise the creditor's rights in his own name.Thus leads to the contract relativity principle in the construction project construction contract breakthrough the abuse.The fourth part analyzes the problems and causes in the judicial practice of article26,paragraph 2,of the interpretation,and concludes that the main problems are the inadequate legal basis,the violation of the principle of equality,malicious prosecution,and damage to the rights and interests of the owner.The fifth part proposes to restrict the rights of the actual constructors from the subject of rights,scope of rights and procedures of exercising rights through the problems and reasons analyzed before.Subject of rights: the developer shall be limited to the owner of the project,the construction unit or the owner.The actual constructors shall be defined as contractors and affiliates who are actually engaged in construction work in subcontracting and subcontracting contracts.The owner who can sue the owner for liability within the scope of the payment is the actual builder.Scope of rights: the actual construction person can sue the owner to claim the scope of rights is the direct project cost,and enjoy the project priority.Limitation of procedure: the actual builder shall be the sole plaintiff.In the case of one layer subcontracting or subcontracting: the subcontractor or subcontractor shall be the defendant,and the owner shall be the necessary co-defendant.In the case ofmulti-tier subcontracting and subcontracting: the first and last subcontracting and subcontracting are the defendants,and the contractor is the necessary co-defendant.