实际施工人权益保护法律适用研究
发布时间：2018-09-02 09:27
【摘要】：实际施工人是指不具备建设工程施工资质,和承包人签订合同并实际进行工程建设的施工主体。由于其不具备相应资质,在司法实践中通常面临人员伤亡赔偿、工程款结算等法律纠纷。法院处理这些纠纷时,在法律适用方面出现了诸多问题,主要表现为实际施工人和其他施工主体难以区分、权利义务内容不明确,行使权利的方式有争议。产生上述问题的原因在于:一是理论研究不深入,无法为实践做出指导;二是相关法律法规对实际施工人的类型和发包人、承包人承担责任方面的规定不甚完善,与建筑工程领域错综复杂的法律关系相脱节。要解决实际施工人权益保护法律适用中的问题,需明确实际施工人与发包人、承包人之间的法律关系,厘清实际施工人主张权益的法理基础,完善相关实体与程序规范,为法律适用提供可操作性的依据。本文分为五部分,具体内容为:第一部分:是实际施工人权益保护法律适用的现状和问题。通过分析实际施工人权益保护法律适用的现状,结合相关案例,梳理出法律适用中的问题,主要有实际施工人的法律地位不明确、权利义务模糊及行使权利的方式存在争议。正是由于这些问题,导致司法实践中法律适用的混乱。第二部分:分析实际施工人权益保护法律适用问题的原因。在立法方面,涉及实际施工人的条文相对简单,在实践中的操作性不强。在理论研究方面,学者对实际施工人主张权益的理论基础存在较大争议,主要有过错责任说、不当得利返还说、事实契约说、突破合同相对性说,相关理论研究的纷争无法给实际施工法律适用提供明确的引导。第三部分:分析实际施工人权益保护的法理基础。通过分析建设工程施工合同中实际施工人与发包人、承包人的关系,明确发包人、承包人承担责任是基于不同的理论基础。结合民法中债的相对性突破理论,认为发包人承担责任实为合同相对性的突破。承包人与实际施工人签订的合同因为违反了法律法规的禁止性规定而无效,实际施工人可以根据合同无效的处理方法,要求承包人承担责任。第四部分:分析实际施工人权益保护在实践中的具体情形。在保护实际施工人的合法权益时,也应当防止其滥用权利,因此要严格限制实际施工人的范围,明确施工企业的内部承包组织、劳务分包组织、农民工不属于其范畴。结合建设工程优先受偿权的性质认为实际施工人不能成为此优先权的主体。第五部分:根据前文的分析,对完善实际施工人权益保护的法律适用提出了相关建议,主要包括实体和程序两个方面。在程序方面需要明确实际施工人行使权利的方式、行使权利的限制。在实体方面需要明确发包人的责任和工程款的范围。同时借鉴国外有关建设工程担保制度,建议我国设立相应的担保制度,从源头上保障工程款的支付。
[Abstract]:The actual constructor refers to the construction subject who does not possess the construction qualification and signs the contract with the contractor and carries out the actual construction. Because it does not possess the corresponding qualifications, it usually faces legal disputes in judicial practice, such as compensation for casualties, settlement of project funds, and so on. When the court deals with these disputes, there are many problems in the application of the law, which mainly show that the actual constructor and other construction subjects are difficult to distinguish, the content of rights and obligations is not clear, and the way of exercising rights is controversial. The reasons for the above problems lie in: first, the theoretical research is not deep enough to guide the practice; second, the relevant laws and regulations are not perfect for the types of actual constructors and contractors, the contractor to assume responsibility, It is out of touch with the complicated legal relationship in the field of construction engineering. In order to solve the problems in the application of the law for the protection of the rights and interests of the actual constructors, it is necessary to clarify the legal relations between the actual constructors, the contractors and the contractors, clarify the legal basis of the actual constructors' claims of rights and interests, and perfect the relevant entities and procedural norms. To provide the operational basis for the application of the law. This paper is divided into five parts, the specific content is: the first part: the present situation and the question of the application of the law of the protection of the rights and interests of the actual constructor. By analyzing the current situation of the legal application of the protection of the rights and interests of the actual constructors and combing out the problems in the application of the law in combination with relevant cases, the main problems are that the legal status of the actual constructors is not clear, the rights and obligations are vague and the ways of exercising the rights are controversial. It is precisely because of these problems that leads to confusion in the application of the law in judicial practice. The second part analyzes the reasons of the application of the law of the protection of the rights and interests of the actual constructors. In the aspect of legislation, the provisions concerning actual constructors are relatively simple and not operable in practice. In terms of theoretical research, scholars have a great controversy over the theoretical basis of the actual constructors' claims of rights and interests. They mainly include the theory of fault liability, the theory of improper enrichment, the theory of factual contract, the theory of breaking through the relativity of contract. The disputes of relevant theoretical research can not provide clear guidance for the application of practical construction law. The third part analyzes the legal basis of the protection of the rights and interests of the actual constructors. By analyzing the relationship between the actual constructor and the contractor in the construction contract of construction project, it is clear that the responsibility of the contractor and the contractor is based on different theoretical basis. Combined with the theory of the relativity breakthrough of debt in civil law, the author thinks that the contract relativity breakthrough is the responsibility of the contract issuer. The contract signed by the contractor and the actual constructor is invalid because of the violation of the prohibited provisions of laws and regulations, and the actual constructor may require the contractor to bear the responsibility according to the treatment of the invalidity of the contract. The fourth part: analyzes the concrete situation of the protection of the rights and interests of the actual constructor in practice. In protecting the legitimate rights and interests of actual constructors, we should also prevent them from abusing their rights, so we should strictly limit the scope of actual constructors, make clear the internal contracting organizations of construction enterprises, labor subcontracting organizations, and migrant workers do not belong to their category. According to the nature of the priority right of construction project, the actual constructor can not be the subject of this priority. The fifth part: according to the above analysis, the author puts forward the relevant suggestions to perfect the legal application of the protection of the rights and interests of the actual constructors, mainly including two aspects: the entity and the procedure. In the aspect of procedure, it is necessary to clarify the ways and limitations of the actual constructors to exercise their rights. The entity needs to clarify the responsibility of the contractor and the scope of the project. At the same time, it is suggested that our country should set up the corresponding guarantee system to guarantee the payment of project funds from the source.
【学位授予单位】：河南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6
本文编号：2218941
[Abstract]:The actual constructor refers to the construction subject who does not possess the construction qualification and signs the contract with the contractor and carries out the actual construction. Because it does not possess the corresponding qualifications, it usually faces legal disputes in judicial practice, such as compensation for casualties, settlement of project funds, and so on. When the court deals with these disputes, there are many problems in the application of the law, which mainly show that the actual constructor and other construction subjects are difficult to distinguish, the content of rights and obligations is not clear, and the way of exercising rights is controversial. The reasons for the above problems lie in: first, the theoretical research is not deep enough to guide the practice; second, the relevant laws and regulations are not perfect for the types of actual constructors and contractors, the contractor to assume responsibility, It is out of touch with the complicated legal relationship in the field of construction engineering. In order to solve the problems in the application of the law for the protection of the rights and interests of the actual constructors, it is necessary to clarify the legal relations between the actual constructors, the contractors and the contractors, clarify the legal basis of the actual constructors' claims of rights and interests, and perfect the relevant entities and procedural norms. To provide the operational basis for the application of the law. This paper is divided into five parts, the specific content is: the first part: the present situation and the question of the application of the law of the protection of the rights and interests of the actual constructor. By analyzing the current situation of the legal application of the protection of the rights and interests of the actual constructors and combing out the problems in the application of the law in combination with relevant cases, the main problems are that the legal status of the actual constructors is not clear, the rights and obligations are vague and the ways of exercising the rights are controversial. It is precisely because of these problems that leads to confusion in the application of the law in judicial practice. The second part analyzes the reasons of the application of the law of the protection of the rights and interests of the actual constructors. In the aspect of legislation, the provisions concerning actual constructors are relatively simple and not operable in practice. In terms of theoretical research, scholars have a great controversy over the theoretical basis of the actual constructors' claims of rights and interests. They mainly include the theory of fault liability, the theory of improper enrichment, the theory of factual contract, the theory of breaking through the relativity of contract. The disputes of relevant theoretical research can not provide clear guidance for the application of practical construction law. The third part analyzes the legal basis of the protection of the rights and interests of the actual constructors. By analyzing the relationship between the actual constructor and the contractor in the construction contract of construction project, it is clear that the responsibility of the contractor and the contractor is based on different theoretical basis. Combined with the theory of the relativity breakthrough of debt in civil law, the author thinks that the contract relativity breakthrough is the responsibility of the contract issuer. The contract signed by the contractor and the actual constructor is invalid because of the violation of the prohibited provisions of laws and regulations, and the actual constructor may require the contractor to bear the responsibility according to the treatment of the invalidity of the contract. The fourth part: analyzes the concrete situation of the protection of the rights and interests of the actual constructor in practice. In protecting the legitimate rights and interests of actual constructors, we should also prevent them from abusing their rights, so we should strictly limit the scope of actual constructors, make clear the internal contracting organizations of construction enterprises, labor subcontracting organizations, and migrant workers do not belong to their category. According to the nature of the priority right of construction project, the actual constructor can not be the subject of this priority. The fifth part: according to the above analysis, the author puts forward the relevant suggestions to perfect the legal application of the protection of the rights and interests of the actual constructors, mainly including two aspects: the entity and the procedure. In the aspect of procedure, it is necessary to clarify the ways and limitations of the actual constructors to exercise their rights. The entity needs to clarify the responsibility of the contractor and the scope of the project. At the same time, it is suggested that our country should set up the corresponding guarantee system to guarantee the payment of project funds from the source.
【学位授予单位】：河南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6
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