Research On The Right That Actual Construction Subject Requests The Developer To Pay Project Payment

In order to solve the actual construction workers' problems in the construction field and protect the vital interests of migrant workers in the front line,The Supreme People's Court has given the actual construction workers the special right to claim the project payment directly from the employer in Article 26 of the interpretation on the application of legal issues in the trial of construction contract disputes and article 24 of the interpretation on the application of legal issues in the trial of construction contract disputes,It provides a legal basis for each court to deal with relevant cases in practice.However,because the above provision is too simple,on the one hand,it breaks the Privity of contract principle but does not clarify the legal basis of the right;on the other hand,it has not clearly stipulated the connotation of the actual construction worker,the employer's responsibility and the conditions for exercising his rights,nor has it issued a supporting guiding applicable document,as a result,the judgment standards of the local courts in the subject determination and the applicable conditions are different,causing a lot of disputes.Therefore,it is necessary to carry on the thorough discussion from the theory and the practice two stratification planes,seeks to establish the understanding and the application actual construction worker this right reasonable benchmark,causes the above-mentioned article to give full play to the role,to provide a clear,Operability basis for the protection of actual construction workers and migrant workers.Starting from the contents of the above clauses,this paper first analyzes the legal basis of the actual constructor claiming the project payment from the employer,and holds that the judicial interpretation does not have the power to create the law,and the theory of fault liability,the theory of factual rights and obligations,the theory of unjust enrichment and the theory of subrogation cannot be the basis of his claim.It is suggested to confirm the right from the legislative level To make the right of the actual constructor legitimate.Secondly,it discusses the specific identification and manifestation of the actual constructor,and believes that the actual constructor should be the main body of the actual construction in the invalid construction contract.It is clear that the scope of the main body that can exercise the above rights includes the contractor in the illegal transfer and subcontract,but not including the affiliated person and migrant workers.And through case analysis,the disputes in practice are discussed,and it is determined that the employer should be defined as the initial employer of the project,not expanded to be the intermediate contractor in the process of layer by layer transfer and subcontracting,and only bear the supplementary responsibility within the scope of the project funds owed.In addition,in order to realize the principle of horizontal interests and avoid any breach of the contract relativity causing damage to the employer,the exercise of the right of the actual constructor should be limited.Only when the project has been completed and passed the acceptance and the opposite party of the contract is unable to pay for the project,can the right be claimed from the employer.Since the arbitration agreement can only be agreed by both parties,the exercise of the right of the actual constructor is not subject to the arbitration clauses between the contractor and the employer,as well as between the actual constructor and the contractor.