Three Studies on the Dispute Involving Construction Project Contract
|Keywords||the actual constructor black and white contract the priority right for payment|
The construction industry, which closely concerns the national interests and the people’s livelihood, is a great pillar of the national economy. Recently, along with the swift development of the real estate market, non-standard operations appear constantly during its development and construction. Illegal phenomena occur frequently, such as black and white contract, affiliated construction of low qualification or non-qualification enterprises, subcontracting after segmentation, illegally subcontracting. The number of the dispute case involving the construction project contract increases every year. Researching legal issues about these dispute cases can contribute to the social stability, and promote the rapid and healthy development of the real estate market at the same time.The author focuses on three most controversial problems of the dispute involving construction project contract. In chapter 1, the research on safeguarding rights and interests for the actual constructor of the construction project contract is carried out. Based on the study of the definition and feature of the actual constructor, it is identified that migrant workers are not included in the category of the actual constructor. After analyzing the legal basis of the article 26 in "Issues Concerning the Application of Law in Trial of Dispute Cases Involving Construction Project Contracts Interpretation" released by the Supreme Court, the conclusion is proposed that this article lacks the support of the legal basis. In chapter 2, legal issues of the black-and-white construction project contract are studied. Three suggestions to eliminate the black and white contract are given, by analyzing the definition, causes, situation and legal effect of the black and white contract. These three suggestions are reducing the administrative intervention in the construction market, strengthening the crack-down on the dishonesty and fraud enterprises in the construction market, as well as enhancing the management consciousness and legal risk prevention consciousness of the market entity. In chapter 3, the author researches the exercise period of the priority claim right for construction payment. The analysis on the exercise period of the priority right for payment is focused on, based on a case that handled by the author in person. Defects of the current legislation on the exercise period of the priority right for payment, the completion date or agreed completion date being defined as the starting point of the exercise period of the priority right for payment, which is unreasonable and in conflict with the contract law, are indicated. The appropriate approach, deadline date of the payment period for construction project being set as the starting point of the exercise period of the priority claim right for construction payment, is suggested.The paper adopts the research method that combines theory with practice. Based on the legal work experience of the author as a corporate legal counsel, several revision advises are proposed on the legislation for dispute cases involving the construction project contract, by discussing above issues. The author’s proposals are as follows:abolish the provisions of the actual constructor in "Issues Concerning the Application of Law in Trial of Dispute Cases Involving Construction Project Contracts Interpretation", and protect the rights and interests of the actual constructor by the existing legal system; modify the provisions on the starting point of the exercise period of the priority for payment involving the construction project cost.