Practical Analysis Of The Priority Right Of Compensation Of The Actual Constructor Of The Construction Project

On the legislative aspect,our country has not yet defined for the constructor's privilege.To avoid the impact on existing law,it is more reasonable to explain its character as a legal priority rather than statutory mortgage.The practical constructor is the one who has not a contractual relationship with the employer but has performed the practical construction obligation,its form of expression is the constructor of illegal subcontracting and sub-letting or the constructor(attached individual)who has borrowed qualifications to contract projects in the name of others,usually,the practical constructor is the legal person,unincorporated enterprise,individual partnership or contractor,etc.In the case of invalid construction contract,as long as the project quality conforms the quality standards or national standards stipulated in the contract,it would not influence the constructor to exercise the constructor's privilege.In principle,it should be strictly adhere to the principle of contractual relativity,which is not allowed the practical constructor to assert the constructor's privilege to the employer.But if it meets the following conditions,that is,the relative party of the contract loses its ability to perform,or its whereabouts is unknown,or its credit has deteriorated seriously,it would break the constructor's privilege within the scope of the contractor's owed to the contractor's project.Meanwhile,when the practical constructor meets the dual requirements of the constructor's privilege and subrogation right,it can exercise this right via the subrogation right.