Study On The Legal Issue Of The Actual Builder Claiming Rights From The Developer

In 2004,the Supreme People's Court promulgated the Explanation of the Supreme People's Court about Several Issues Concerning Trial of Disputes over Construction Engineering Contract(1)(hereinafter abbreviated as Explanation 1),and used the concept of “actual builder” the first time in Article 4,Article 25,and Article 26.As a commonly-seen subject in the field of construction engineering,the actual builder is a special subject in the field of civil law.Its specialness is mainly reflected as its lack of the construction engineering qualification.Its construction is realized through illegal ways,including subcontracting,illegal subletting,borrowing of qualification,etc.Therefore,the contract signed thereby is also invalid.The actual builder is a periodical product of China's imbalanced rural and urban development in China.It is a special civil subject forming to protect the rights of migrant workers in the field of construction engineering.Since the field of construction engineering involves the protection of migrant workers' rights,and considering the special attribute of construction engineering,the rights and obligations of the actual builder cannot be simply adjusted according to regulations stipulated by the Contract Law of the People's Republic of China,such as returning the property acquired by the invalid contract.Article 26 of Explanation 1 endows the actual builder with the right to directly claim the engineering fund from the contract issuer for the main purpose of providing a special relief for the actual builder to claim for the engineering fund under the condition that there is no relative person of the actual builder in a contract or the actual builder cannot find the payer or the payer goes bankrupt or the payer's credit standing is deteriorating but the actual builder has way to make complaints.With the promulgation of Explanation 1,the engineering funds between the actual builder and the developer are increasing annually,leading to the constant emergence of relevant legal issues.For example,some places have failed to accurately implement regulations of the legal interpretation,and allows the actual builder to require the developer to unconditionally undertake the obligation to pay the engineering funds.In2019,the Supreme People's Court introduced relevant legal policies and cannot make the payment because of Explanation of the Supreme People's Court about Several Issues Concerning Trial of Disputes over Construction Engineering Contract(2)(hereinafter abbreviated as Explanation 2).Article 25 of Explanation 2 introduces the subrogation right into the litigation of the actual builder to claim rights from the developer at an attempt to create a channel to protect construction workers,including migrant workers,and provide vigorous judicial protection for rights and interests of migrant workers in the disadvantaged place to realize social equity in the substantial sense.To the actual builder,this seems to be a new solution,which is actually a solution uneasy to realize,because the burden of proof is heavy,thus hampering the actual builder to realize his or her rights and interests soon.Therefore,it is of vital practical significance to comprehensively study the status of the actual builder claiming rights from the developer,and implement the corresponding countermeasures.Below are several research questions examined in this paper:Section 1 aims at clarifying the concept,components and expression forms of the actual builder.Objectively,the specific content of the actual builder claiming rights from the developer is clarified.These two aspects constitute the research foundation of this paper.Section 2 proceeds from the current theoretical perspective of civil law to analyze the jurisprudential basis for the actual builder to claim rights from the developer.As to the nature of the actual builder's claiming of rights,the academic circles have developed four major theories including the theory of the relationship of factual rights and obligations,the theory of unjust enrichment,the theory of fault liability,and the theory of subrogation.Combining the above theories and the institutional arrangement of the actual builder claiming engineering funds from the developer,this paper holds that the nature of the developer's liability refers to the subrogation system.Section 3 is to analyze the actual legal applications of the actual worker according to regulations of the current law and judicial policies,and to the judgment logic in judicial practices.Thereby,several questions existing in the judicial practice are summarized,including the dispute over the application of the priority for the actual builder to get the repayment,dispute over the definition of the scope of workers,and guarantee of rights and interests of the affiliated actual builder.Section 4 discusses how to improve countermeasures for the actual builder to claim rights from the developer.The focus is on resolving the way how the affiliated personclaim rights from the developer.Besides,the scope of the developer and the actual builder is clearly defined.Finally,the necessity of endowing the actual builder with the priority to get repayments is pointed out.