Research On The Relevant Legal Issues Of The "Actual Constructor"

In the early stage of the development of China's construction market,in order to standardize the order of the construction market and ensure the quality of construction projects,China has implemented a strict qualification management system for construction enterprises and raised the threshold of entering the construction market.However,in the early stage of primary construction enterprises,they often face the dilemma of not having the assets,project performance and complete talents to apply for construction qualification.In order to seek development,the phenomenon of using qualification to contract projects(i.e.affiliation),illegal subcontracting and subcontracting gradually emerges.Illegal issuance and contracting in the early stage of construction projects,arbitrary subcontracting and illegal subcontracting in the construction process,all of these illegal behaviors have led to the increasingly prominent problem of project funds and wage arrears of migrant workers,seriously affecting the order of the construction market,and the behaviors of subcontracting,illegal subcontracting and borrowing qualification have also led to a large number of quality and safety accidents.With the rapid growth of the number of construction contract disputes cases accepted by the people's court,however,the existing laws and regulations at that time were difficult to adapt to the new legal problems in the construction field.In order to properly solve such problems,the Supreme People's Court issued the interpretation of the Supreme People's Court on the application of legal issues in the trial of construction contract disputes cases(I)(the following brief)"Construction engineering interpretation(I)",which specifically regulates these issues,provides a guarantee for the contractor to claim project funds under the conditions of subcontracting,illegal subcontracting and borrowing qualification.In addition,it is also the first time to put forward the statement of "actual constructor",giving "actual constructor" speciallitigation rights.The introduction of construction engineering interpretation(1)shows that China's special protection for the "actual constructors",a "vulnerable group",has also brought new changes to China's construction market.However,the "actual constructor" system has been in operation for15 years,and new legal problems continue to appear.The latest "construction interpretation(II)" issued in January 2019 does not solve all these problems.Book?This paper discusses the relevant legal issues in the application of the "actual constructor" system at this stage.This paper is divided into three parts to discuss:the first part,this paper briefly describes the background of the "actual constructor" and the practical significance and disadvantages of the system.In the face of strict qualification management system of construction enterprises,some construction enterprises contract projects by means of subcontracting,illegal subcontracting and borrowing qualification,which seriously disrupts the order of construction market.The irregular employment of actual construction workers leads to the increasingly prominent problem of migrant workers' back pay.In order to solve this series of problems,the Supreme People's Court issued relevant judicial interpretation and put forward the "actual construction man" system?This system is introduced in the special background of our country,and it has certain significance at this stage.But with the healthy development of our country's construction market,this system may be gradually cancelled.This paper only discusses the application of the system at the present stage;the second part mainly lists the problems existing in the operation of the "actual constructor" system at the present stage,such as:the concept of the actual constructor is unclear,the relief way of the actual constructor who borrows the qualification is not clear,it is difficult for the actual constructor to claim the right to adduce evidence,and the actual constructor's employment is not standardized;the third part mainly aims at In the second part,the author puts forward some suggestions to improvethe system of actual construction workers,such as improving the evidence consciousness of actual construction workers,clearly stipulating the way of right relief of affiliated people,standardizing the employment system of actual construction workers,etc.The author looks up the relevant cases of the Supreme People's court and the courts in Shanxi Province through China's judicial document network,understands the development trend of the construction market in China and Shanxi Province through consulting the official websites of the Ministry of housing and urban rural development of China and the Department of housing and urban rural development of Shanxi Province,and discusses the key issues of this paper accurately and reasonably,and finally puts forward to better apply the actual construction system Rationalization proposal.