Research On Subornation Right Of Actual Constructors In Illegal Subcontracting And Subcontracting

In order to solve the problem of migrant workers' difficulty in asking for salary,the Supreme People's court has formulated a judicial interpretation,which stipulates that the actual constructor has the right to claim the project price from the employer,that is,to indirectly guarantee the payment of migrant workers' salary by realizing the payment of the project price by the actual constructor.In 2004,the Supreme People's court's interpretation on the applicable legal issues in the trial of construction contract disputes(hereinafter referred to as "judicial interpretation I")first proposed the concept of actual constructor,and stipulated the rules for the protection of its special rights and interests.Article 26 stipulated that the actual constructor can break through the relativity of the contract and claim the project price from the employer Article 24 and Article 25 of the interpretation of the high people's Court on the application of legal issues in the trial of construction contractdisputes(II)(hereinafter referred to as "Judicial Interpretation II")shall be improved.Even though it has been improved,the right basis stipulated in Article 26 of judicial interpretation I and Article 24 of Judicial Interpretation II is unclear,which has been controversial in academic and practical circles.There are many theories about the right basis of the actual constructor to claim the project price from the employer,but the theory of subrogation is the most persuasive.From the perspective of constitutive requirements,the right stipulated in Article 26 of judicial interpretation I and Article 24 of Judicial Interpretation II conforms to the constitutive requirements of subrogation,and has the same effect on the procedural rules and the provisions of the right scope;from the perspective of system interpretation From the point of view,Article 25 of the newly issued Judicial Interpretation II stipulates that the actual constructor has the right of subrogation,and the exercise effect is the same as that of Article 24.However,it is suspected that the actual constructor has been elevated because the exercise conditions are more than Article 24.Only when article 24 and Article 25 of Judicial Interpretation II are put together in the framework of subrogation system can we reasonably explain the significance of the new article 25.Therefore,this paper holds that the right of the actual constructor to claim the project price from the employer is the right of subrogation,which is a special provision of the system of subrogation in the field of construction engineering.The right of subrogation of the actual constructor is the special performance of the right of subrogation of the creditor in the field of construction,and its exercise rules are also special.As for the subject of rights,it is necessary to identify the actual constructors in line with the law among the subjects with mixed interests.In the opposite party of right,whether the object of subrogation under the current contract law is money claim or the draft of civil code expands the object of subrogation right to creditor's right and related subordinate rights.The object of right is the right of claim for payment.In the field of construction,the contractor has the right of claim for payment of money to the employer,so the subrogation right should be included in the actual constructionsubrogation right However,in order to balance the rights and interests of the actual constructor with the stability of legal order and the rights and interests of the employer,the scope of the object of the subrogation of the actual constructor shall not include the subrogation;moreover,due to the lack of agreement between the actual constructor and the secondary debtor,which does not constitute a factual contract and is not a relationship of creditor's rights and debts,the subrogation of the creditor's rights can not be exercised against the secondary debtor,and the employer is only limited to the relative employer.In terms of the scope of the right,in view of the professionalism of the construction industry,the scope of the exercise of the right should only include direct costs,indirect costs,taxes and profits.In the burden of proof,the burden of proof should be reversed and borne by the employer,which is more conducive to the determination of the facts of the case.In practice,the actual constructor is limited to his own ability,which is far away from the evidence and weak in the ability of proof.Assigning the burden of proof to the employer with stronger ability of proof can avoid the failure of the purpose of the subrogation system of the actual constructor.