实际施工人的诉权初探
发布时间：2019-05-28 11:46
【摘要】：针对实际施工人能否直接起诉发包人的问题,各方存在不同见解。有学者认为不应赋予实际施工人直接起诉发包人的权利,有学者认为仅实际施工人中的挂靠人不具备该资格,也有学者认为挂靠人也应享有该资格。笔者对此问题持肯定观点,从《关于审理建设工程施工合同纠纷案件适用法律问题的解释》(以下简称《司法解释》)第26条条文理解、法理分析以及该《司法解释》的出台目的出发,结合其他法律法规及地方指导意见,以及条文对实际施工人的限制等角度,对该观点进行了阐述,并就实际施工人如何保护自身的利益给出了比较实务性的建议。 全文共分为三章： 第一章,结合《司法解释》出台之目的,对实际施工人的概念及其形式进行了探讨,得出实际施工人包含非法转包合同中的转承包人、违法分包合同中的分包人以及没有资质借用他人资质的挂靠人,并对产生实际施工人的社会大背景进行了浅要分析,从权益保护的角度探究了实际施工人的生存现状。 第二章,对于《司法解释》第26条第2款赋予实际施工人直接起诉发包人权利这一制度进行了深入探究。首先,针对现存的关于这一制度的不同观点进行研究,并给出肯定的立场及观点：一、合同相对性原则在这类纠纷中存在突破的必要性和可行性；二、即使不另行突破,《合同法》中已为大陆法国家所接受的且已突破合同相对性原则的另一制度——代位权制度也同样可以用来解释第26条第2款的适用；三、再退一步讲,即使是从事实合同关系的角度,同样可以解释实际施工人享有这一诉权的合法性与合理性。其次,在论证了实际施工人理应享有直接起诉发包人的诉权的基础上,对挂靠人是否属于《司法解释》第26条中的“实际施工人”,即挂靠人是否同其他实际施工人一样享有直接起诉发包人的权利,进行了分析,认为无论是从法条的文义出发,法条出台前后的立法进程出发,还是从法条出台的目的出发,挂靠人享有这种权利是必然的。 第三章,讨论了实际施工人直接起诉发包人所需具备的条件以及在该诉讼中发包人所应承担的责任。另外,对实际施工人如何更好的行使诉权提出了建议和构想,包括注重保存证据、及时行使诉权；选择适当的起诉对象；做好合同管理、造价结算等工作。
[Abstract]:In view of the problem whether the actual construction workers can directly sue the contractors, there are different views. Some scholars think that the actual construction workers should not be given the right to sue the contractor directly. Some scholars think that only those who are affiliated with the actual construction workers do not have the qualification, and some scholars think that the connected workers should also enjoy the qualification. The author holds a positive point of view on this issue, and understands the provisions of Article 26 of "interpretation of the applicable Law in cases of Construction contract disputes" (hereinafter referred to as "Judicial interpretation"). Starting from the legal analysis and the purpose of the introduction of the Judicial interpretation, combined with other laws and regulations and local guidance, as well as the restrictions of the provisions on the actual construction workers, this paper expounds this point of view. Some practical suggestions on how to protect their own interests are given. The full text is divided into three chapters: the first chapter, combined with the purpose of the introduction of the Judicial interpretation, discusses the concept and form of the actual construction workers, and concludes that the actual construction workers include the subcontractors in the illegal subcontract. The subcontractors in the illegal subcontract and those who are not qualified to borrow the qualifications of others are analyzed, and the living situation of the actual construction workers is explored from the point of view of the protection of rights and interests. In the second chapter, the system of directly prosecuting the contractor is given to the actual construction workers in Article 26, paragraph 2, of Judicial interpretation. First of all, this paper studies the existing different views on this system, and gives positive positions and viewpoints: first, the necessity and feasibility of the breakthrough of the principle of relativity of contract in this kind of disputes; Second, even if there is no other breakthrough, the subrogation system, which has been accepted by the mainland law countries and has broken through the principle of relativity of the contract, can also be used to explain the application of Article 26, paragraph 2; Third, to take a step back, even from the point of view of the factual contractual relationship, we can also explain the legitimacy and rationality of the actual construction workers to enjoy this right of action. Secondly, on the basis of demonstrating that the actual construction workers should enjoy the right of action to sue the contractor directly, whether the connected person belongs to the "actual worker" in Article 26 of the Judicial interpretation, That is, whether the linked person, like other actual construction workers, has the same right to sue the contractor directly, and makes an analysis, and holds that whether it is based on the meaning of the law, the legislative process before and after the promulgation of the law, or from the purpose of the introduction of the law, It is inevitable for people to enjoy this right. In the third chapter, the conditions required for the actual construction workers to sue the contractor directly and the responsibilities of the contractor in the lawsuit are discussed. In addition, some suggestions and ideas are put forward on how to better exercise the right of action of the actual construction workers, including paying attention to the preservation of evidence and exercising the right of action in time; selecting the appropriate prosecution object; doing a good job of contract management, cost settlement and so on.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.297
本文编号：2487023
[Abstract]:In view of the problem whether the actual construction workers can directly sue the contractors, there are different views. Some scholars think that the actual construction workers should not be given the right to sue the contractor directly. Some scholars think that only those who are affiliated with the actual construction workers do not have the qualification, and some scholars think that the connected workers should also enjoy the qualification. The author holds a positive point of view on this issue, and understands the provisions of Article 26 of "interpretation of the applicable Law in cases of Construction contract disputes" (hereinafter referred to as "Judicial interpretation"). Starting from the legal analysis and the purpose of the introduction of the Judicial interpretation, combined with other laws and regulations and local guidance, as well as the restrictions of the provisions on the actual construction workers, this paper expounds this point of view. Some practical suggestions on how to protect their own interests are given. The full text is divided into three chapters: the first chapter, combined with the purpose of the introduction of the Judicial interpretation, discusses the concept and form of the actual construction workers, and concludes that the actual construction workers include the subcontractors in the illegal subcontract. The subcontractors in the illegal subcontract and those who are not qualified to borrow the qualifications of others are analyzed, and the living situation of the actual construction workers is explored from the point of view of the protection of rights and interests. In the second chapter, the system of directly prosecuting the contractor is given to the actual construction workers in Article 26, paragraph 2, of Judicial interpretation. First of all, this paper studies the existing different views on this system, and gives positive positions and viewpoints: first, the necessity and feasibility of the breakthrough of the principle of relativity of contract in this kind of disputes; Second, even if there is no other breakthrough, the subrogation system, which has been accepted by the mainland law countries and has broken through the principle of relativity of the contract, can also be used to explain the application of Article 26, paragraph 2; Third, to take a step back, even from the point of view of the factual contractual relationship, we can also explain the legitimacy and rationality of the actual construction workers to enjoy this right of action. Secondly, on the basis of demonstrating that the actual construction workers should enjoy the right of action to sue the contractor directly, whether the connected person belongs to the "actual worker" in Article 26 of the Judicial interpretation, That is, whether the linked person, like other actual construction workers, has the same right to sue the contractor directly, and makes an analysis, and holds that whether it is based on the meaning of the law, the legislative process before and after the promulgation of the law, or from the purpose of the introduction of the law, It is inevitable for people to enjoy this right. In the third chapter, the conditions required for the actual construction workers to sue the contractor directly and the responsibilities of the contractor in the lawsuit are discussed. In addition, some suggestions and ideas are put forward on how to better exercise the right of action of the actual construction workers, including paying attention to the preservation of evidence and exercising the right of action in time; selecting the appropriate prosecution object; doing a good job of contract management, cost settlement and so on.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.297
【参考文献】
相关期刊论文 前6条
1 马凤玲;李敏;;论建筑工程实际施工人权益的法律保护[J];工会论坛(山东省工会管理干部学院学报);2012年01期
2 高印立;;论实际施工人的特殊诉权[J];北京仲裁;2012年02期
3 周立永;;论建设工程实际施工人的权益保护[J];法制与社会;2011年06期
4 马新;白萍红;;论《最高人民法院关于审理建设工程施工合同纠纷案件适用法律问题的解释》第二十六条的理解与适用[J];佳木斯教育学院学报;2012年10期
5 魏力平;;对代位权法律问题的探讨[J];四川省政法管理干部学院学报;2001年03期
6 刘尊知;;挂靠纠纷的诉讼主体确立及责任承担[J];人民司法;2008年16期
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