Research On The Scope And Realization Path Of Protecting The Interests Of Actual Constructors

Article 26 of the Interpretation of the Supreme People’s Court on the Application of Laws in the Trial of Disputes over Construction Contracts(hereinafter referred to as the Interpretation)gives the actual constructor the right to claim the project payment directly from the employer.Although this provision is conducive to the protection of the legitimate rights and interests of the actual constructors to a certain extent,it is followed by an increasing number of disputes between the actual constructors and the employer’s claims for project funds.Moreover,due to the over-standardization of its provisions,there are different understandings of it in judicial practice,resulting in inconsistent judgment results.For example,what is the nature of the right of the actual constructor to claim the project payment from the employer beyond the relativity of the contract? Does the actual constructor need to meet any conditions for the employer’s right to claim for project funds? Can the actual constructor claim the project payment from the employer under the affiliated situation?What is the settlement basis for the project payment advocated by the actual constructor to the employer? What is the scope of project funds that the actual constructors can claim? These problems directly affect the realization of the actual construction owner’s right to claim the project payment from the employer.This article is based on the "Interpretation" and relevant regulations,and combined with the court’s trial practice of relevant cases in practice to study the above issues.In addition to the introduction and conclusion,the paper is divided into five parts:The first part is an empirical analysis of the actual construction owner’s claim to the employer for project funds.Through sorting out the judgment cases of actual constructors claiming project funds from the employer in practice,it is concluded that the dispute focus between the actual constructors and the employer is mainly focused on four aspects: the nature of the actual constructors’ claim for project funds to the employer,the main scope of the actual constructors’ claim for project funds,the exercise of the actual constructors’ claim for project funds to the employer,and the calculation standards of project funds that the actual constructors can claim.Disputes over the nature of rights are mainly reflected in different theories,such as the claim for the return of unjust enrichment,the de facto relationship between rights and obligations,subrogation and the protection of the rights and interests of migrant workers.The disputes of the right subject are mainly manifested in the judgment standard and scope of the actual constructor and the meaning of the employer after many illegal subcontracting.Disputes over the conditions for exercising rights mainly include the restrictions on the project payment claimed by the actual constructor to the employer,the distribution of burden of proof,and whether the project payment claimed by the actual constructor to the employer is bound by the arbitration clause.Disputes over the calculation of project price mainly focus on the reference basis for settlement of project funds and the specific scope of project funds that the actual constructors can claim.The second part is the analysis of the nature of the actual construction owner’s right to claim the project payment from the employer.First of all,it sorts out the main viewpoints of the current practice and academic circles on the nature of this right,including the claim for the return of unjust enrichment,the de facto relationship between rights and obligations,subrogation,the protection of the rights and interests of migrant workers,fault liability and the weakening of the relativity of contracts.At the same time,the above six academic propositions are evaluated one by one.Secondly,a comparative analysis is made between the provisions for the actual constructor to claim the right to the employer and the constituent elements of the claim for unjust enrichment return,showing that there is logical consistency between the two.Therefore,it is believed that the nature of the right of the actual constructor to claim the project fund from the employer is the claim for unjust enrichment return.The third part is about the definition of the subject of the right to claim for project funds of actual constructors.First of all,through analyzing the different viewpoints of the theoretical circle on the concept of actual constructors,the actual constructors should refer to the units and individuals that actually participate in the construction and perform the construction tasks after the construction contract is invalid.Secondly,on the basis of summarizing the judgment standards of actual constructors,the typical manifestations are emphatically discussed,including contractors of illegal subcontract,contractors of illegal subcontract and contractors borrowing qualifications.In addition,several special subjects that are more controversial in judicial practice are judged and excluded from the category of actual constructors,such as migrant workers and internal contracting organizations of enterprises.Finally,in the case of multi-level subcontracting and illegal subcontracting,the general contractor does not belong to the scope of the employer,and the actual constructor cannot break through the relativity of the contract to claim his rights.The fourth part,the actual construction of the employer’s right to claim the project.As for the exercise of the rights of the actual constructor,there are mainly the following disputes: including what conditions the actual constructor needs to meet in order to claim the rights from the employer beyond the relativity of the contract,how to allocate the burden of proof,and whether the actual constructor is bound by the arbitration clause in exercising the rights.The actual constructor breaks through the relativity of the contract to claim rights from the employer,and shall only exercise the right of claim for the project payment to the employer when the actual constructor has completed the obligations stipulated in the construction contract and there is a situation that it is difficult to realize his rights without claiming the project payment to the employer.When the actual constructor claims the project payment from the employer,he shall first give a preliminary proof to prove that the employer owes the project payment.The actual constructor’s claim to the employer is not bound by the arbitration clause.The fifth part is the determination of the calculation standard of project funds.This includes the settlement basis of the project funds and the scope of the project funds that the actual constructors can claim.The actual builder claimed to the employer that the project payment should first be settled by referring to the agreement in the construction contract.Only when there is no agreement in the contract and both parties cannot reach an agreement through negotiation can other settlement basis be adopted.The scope of project funds that the actual constructors can claim includes interest and profit of project funds.Whether the project quality warranty fund is included in the scope of project funds that can be claimed shall depend on the project quality warranty period;The management fee shall not be included in the scope of project funds claimed by the actual constructor.