Research On The Legal Issues Of The Protection Of The Rights Of The Actual Constructors Of Construction Projects

Actual construction is not a clear legal concept,but he is a particularly important in the construction project case of the main body,he is a kind of more special in the civil law,the main characteristic is the contract that he undertake engineering are invalid contract,because he has no qualifications required by the construction projects,or is it through normal legal access to the project,but by subcontracting,illegal subcontracting and borrow qualification for engineering,but because the interests of the construction project often involves a large number of migrant workers,so even if the actual construction of people is through the illegal behavior in engineering,some protection for its interests,Not just return the property,and it is also because the particularity of the engineering,because if the contract is invalid claim restitution property,restorable,can lead to enormous waste of resources,a project has hundreds of thousands of less,many hundreds of millions of,is we can't afford to waste resources,so,in order to the stability of social order and economic,to minimize the losses,leads to the actual construction of human rights protection.On the one hand,the contract signed by the actual builder is invalid,on the other hand,the contract is actually performed,so we can not judge the relationship between their rights and obligations in accordance with the effective contract,nor can we deny their role in the project,so how to reasonably and legally guarantee their rights,is the issue to be discussed in this paper.Although the supreme people's court has issued the interpretation on the application of law in the trial of construction contract dispute cases for construction projects(I),the interpretation on the application of law in the trial of construction contract dispute cases for construction projects(II)has been issued after 15 years.Two judicial interpretations have made provisions for the right from the actual construction,but also have no detailed provisions,so up to now have not a clear legal concept "construction",is also for this reason,only the various disputes in judicial practice,including in terms of actual construction people recognized,how to breakthrough of contract relativity to protect the interests of the actual construction,the responsibility division,scope of rights protection is a controversial problem,now the view of scholars are mainly analyze its feasible,but there was no real for the actual construction in the interests of people,the concept is based on the actual construction is clear,In order to protect its rights more comprehensively,balance theinterests of the main parties in the construction project.For the current study situation,this article through the case and relevant laws and regulations and policy,to the actual construction of rights issues were analyzed,and settle problems,protect the rights of actual construction,through the author's research suggests that the actual construction is through illegal means such as subcontracting,illegal subcontracting and borrow qualifications to participate in project construction and the legal person of real money,materials and labor,unincorporated businesses and individual partnerships,contractor and construction main body.It is a subject that can bear civil liability independently and has labor relations with migrant workers,because the purpose of the judicial interpretation of the protection of actual builders is to solve the problem of migrant workers' wages.If the protection of actual builders does not involve migrant workers' wages,it is not necessary to exist.Actual construction people exercise their rights of way mainly divided into two kinds,the first is direct to the other party to the contract claims responsibility,at the time of the contract to the other party can't bear the responsibility,to breakthrough of contract relativity,claim rights to the developer,and the scope of responsibility and burden of proof for the developer also should have corresponding regulation,since a short time to "construction" this one theme disappear,will try to balance his interests,between the employer and the contractor and protect the wages of migrant workers,the construction market running smoothly.The first part of this paper is to define the basic theory of the actual builder,focusing on explaining why we should protect the rights of the actual builder,and what is the theoretical basis for protecting the rights of the actual builder.The second part,from the legislative and judicial aspects,studies the current situation of the protection of the rights of actual constructors in judicial practice and summarizes the effect of practice through case analysis.The third part mainly summarizes the legislative and judicial problems in the protection of the rights of the actual constructors of the construction project by combining with the analysis of the application of the law.Finally,in view of the problems summarized above,the author puts forward some Suggestions to improve the protection of the rights of actual constructors.It is believed that with the country's economic development and the diversification of the protection system of migrant workers' rights,the regulations of the actual construction personnel system will be more perfect.