Reaserch On Actual Constructor’s Priority Right Of Construction

In China’s construction engineering industry,it is not surprising that construction units and contractors default on construction enterprise project funds,which leads to capital turnover of construction enterprises is very difficult.Some enterprises default on migrant workers’ wages,resulting in workers’ petition and petition from time to time,which has caused extremely bad impact on the society and constitutes a factor of social instability.In order to solve this problem,it is necessary to establish the priority system of construction projects to protect the rights and interests of contractors and construction workers.However,China has not yet established the priority system.Compared with other countries with earlier priority legislation,such as France and Japan,the provisions on the priority of construction projects are only relatively individual and scattered,which is not mature in theory.For example,Article 286 of the contract law and relevant judicial interpretation stipulate that the contractor of construction project has the priority to be compensated for the project price Principle,the main scope of the "Contractor" has not been clearly defined.In practice,due to the implementation of qualification management for construction projects in China,the construction contracts signed by enterprises,units or individuals who do not have the corresponding qualification of construction enterprises are invalid,which leads to a large number of subcontracting,illegal subcontracting and borrowing qualification(affiliation)in the construction industry.Whether the actual construction workers who sign construction contracts have the right to claim the priority of construction projects has always been the long-standing theory and practice A difficult issue in the dispute.As for the exercise conditions of the construction project priority,whether there should be restrictions on the validity of the contract,whether the actual construction workers can break through the relativity of the contract and directly claim the construction project priority to the employer,different courts and judges have different understandings,leading to the phenomenon of different judgments in the same case,which greatly damages the authority of the law.Therefore,whether the subject scope of construction project priority should be expanded to include the actual construction personnel under the invalid contract and protect them according to law,it is urgent to explore the answer to the problem in theory,so as to apply it to the legislative and judicial practice,so as to unify the understanding and judgment.The paper consists of three parts: introduction,text and conclusion.The text is divided into four chapters.The first chapter is the legislative and judicial status of the construction priority of the actual construction workers.Through the analysis of judicial practice legislation and local judicial documents,it is found that most courts support the actual construction workers to claim construction project priority in judicial documents.However,according to the sample analysis,it is found that only 41% of the judgments support the construction workers to enjoy the construction project priority.This chapter also analyzes the main reasons for the above differences: that is,whether the actual construction workers claim the construction project priority is based on the validity of the contract,whether it can break through the relativity of the contract,and the specific conditions required for the specific exercise of the right.The second chapter puts forward the research question.This chapter specifically analyzes the main reasons why the actual construction workers claim the construction project priority in the same case,analyzes whether the actual construction workers claim the construction project priority on the premise of the validity of the contract,whether it can break through the relativity of the contract,and the specific conditions for the specific exercise of the construction project priority.At the same time,it discusses the specific conditions for the actual construction personnel to exercise the construction project priority Items: the amount of project payment has been determined or can be determined;the project payment payable by the employer has reached the repayment period;the exercise period does not exceed six months;it belongs to the scope of application of construction project priority,and the subject matter of construction project priority belongs to the scope of application of construction project priority in nature.The third chapter is the theoretical basis of the construction project priority of the actual constructor.This chapter discusses the theoretical basis of subrogation system for the actual constructor to break through the relativity of contract and claim the construction project price to the employer.From the nature of the construction project priority,the construction project priority belongs to the legal priority.Therefore,the actual constructor does not need to take the validity of the construction contract as the premise,and the law gives the actual construction project priority right in the form of direct provisions International construction workers can break through the relativity of the contract and directly claim the project price and the priority of compensation to the employer.Based on the theory of construction priority,the construction right of subrogation should be included in the construction priority system.The fourth chapter is the measures to solve the problem.In this chapter,the author proposes to establish the system of construction project priority in China,which includes the surveyor,designer,subcontractor,illegal subcontractor,affiliated actual constructor and subcontractor into the scope of the contractor,enjoys the construction project priority,and defines the construction project priority as the legal priority,so as to solve the judicial disputes on the construction project priority of the actual constructor in judicial practice.In order to protect the interests of the construction workers attached to the actual constructor,the contractor should be strictly limited to give up the priority of construction project,and only when the employer provides sufficient guarantee or has been properly protected,the contract can be transferred and abandoned.At the same time,the scope of compensation and the scope of the subject matter that the contractor or the actual constructor claims for the construction project priority should be expanded.