Protecting the Interests of Creditors on the Process of Bankruptcy Reorganization
|Course||Civil and Commercial Law|
|Keywords||The actual construction The contract is null and void Subrogation rights Contract Relativity|
In recent years, China's construction industry subcontractors, widespread illegal subcontracting dialysis from a legal perspective, the direct contractual rights and obligations of the relationship does not exist between the actual construction and the Employer, in contract Defaulting Payment actual construction No prosecution Employer? our General Principles of the Civil Law and Contract Law is not to utter, in order to meet the needs of the practice, in 2004 the Supreme Court issued a judicial interpretation of a number of issues on the trial of the construction contract provisions require the actual construction can advocate to the Employer rights, this provision unified judicial practice, but has also led to a lot of confusion, under what circumstances should be identified as the actual construction, the claim whether the appropriate legal basis, if, in the exercise of unsuccessful cases should be how to relief? such this all sorts of problems to be solved in the judicial practice, the interpreter did not respond. In view of this, we intend to use historical research, empirical comparative and legal analysis, trying to grasp the meaning of the actual construction, to reveal the nature of the actual construction into advocates for projects as well as its legal value, so as to clarify the actual construction advocate for projects system logical confusion, enhance the actual construction advocated Project Payment theoretically self-consistent, and its lack of regulation for our existing law proposed to further improve the proposal. Remove from the introduction and conclusion, is divided into five parts, roughly organized as follows: The first part is about the meaning of the definition of the actual construction, components, and its manifestations, first part elements of civil legal relationship from the construction contract Discrimination start, pointed out that the actual construction in the construction contract legal relationship status particularity Second, from the point of view of the law hermeneutics Analysis of the actual construction of the concept, based on the analysis of the constituent elements of the actual construction of the system and its manifestations. The second part is about the actual construction of the construction contract in China Protection Legislation Situation peep, and that part of the legislative status quo of our spy, the protection of the rights and interests of the actual construction did not fully meet the purpose of indisputable interest litigation ended, but also derived from a more theoretical controversy. The third part of the national and regional legislation on the Protection of the actual construction cases investigated, the part of the first countries on the construction money payment claims, followed summarizes the countries about the scope of the third person to define its to contract any claim by a different regulation finally summed countries remedial measures on project payment arrears, certainly shortcut achieve its exquisite provisions of easy money payment claims, such fine provisions of reference. The fourth part is about the actual construction of the rights and interests protection jurisprudence examine, clarify contract law on the basis of an invalid contract acknowledging detailed discern the actual construction to the Employer advocates legal basis for projects and theoretical basis points. The fifth part is about the actual construction in China advocate a review of the system and suggestions for projects, first introduced the necessity and feasibility of the actual construction of building construction contract Protection, followed that of actual construction system in the substantive aspects of and procedural aspects of the defect, and finally, combined with the author's understanding of the actual construction system made a number of legislative proposals.