【正文】 系的發(fā)包人主張權(quán)利，突破了合同相對性，有一定實(shí)踐及理論意義， 但導(dǎo)致轉(zhuǎn)包、違法分包愈演愈烈，違背了條款制定的初衷。 第二部分，合同相對性是合同法構(gòu)建的基石，是契約自由精神的基本保障，沒有合 同相對性就沒有意思自治和合同自由。 第三部分，隨著社會的發(fā)展，在新的社會本位基礎(chǔ)上，各國從理論到立法及司法實(shí) 踐均出現(xiàn)合同相對性突破。但合同相對性系原則，突破相對性應(yīng)是例外。 第四部分，發(fā)包人、承包人、分包人、轉(zhuǎn)包人、掛靠人等概念嚴(yán)格進(jìn)行區(qū)分，發(fā)包 人不包括轉(zhuǎn)包人、違法分包人等，以利于責(zé)任的區(qū)分。因此實(shí)際施工人應(yīng)嚴(yán)格限制為登記注冊的法人。轉(zhuǎn)包人、違法分包人、 掛靠人、被掛靠人等對實(shí)際施工人主張的工程款承擔(dān)連帶責(zé)任，系屬于不當(dāng)?shù)美牟徽? 正連帶責(zé)任?；谠V訟效率，實(shí)際施工人可以向沒有合同關(guān)系 的發(fā)包人行使請求權(quán)， 則發(fā)包人對承包人的抗辯權(quán)也可以對抗實(shí)際施工人，并于一訴一并處理。同時(shí)針對條款本身配套制度的缺失進(jìn)行完 善，通過規(guī)范建筑公司登記注冊制度、建筑市場用工制度等將農(nóng)民工納入社保范圍，杜 絕轉(zhuǎn)包違法分包愈演愈烈的趨勢。 關(guān)鍵詞 : 合同相對性原則 。建設(shè)工程施工合同 。發(fā)包人 。 違法分包人 2 Abstract The article has its theoretical and practical value. The project construction contract due to the strong professional, industry practices and plex legal relations, is now one of the key and difficult issue for civil and mercial trial. The Supreme People39。s judicial Interpretation concerning the administer justice of construction contract dispute case (hereinafter referred to as the Judicial Interpretation of article 26) breaks through the traditional theory of contract relativity, obligates the responsibility on the developer , but because of the ambiguity, there exist certain confusions in practice. The subject has a certain practical significance Contract relativity is the theory base of contract the theory there would be no freedom of contract and autonomy, countries generally follow the legislative and judicial practice. But as legislation by the individual standard towards the return of the social standard, the contract relativity from absolute standard to relative one,most of countries admit the breakthrong of theory of contract such breakthrough is only regarded as an exception, in the project construction contract judicial application is no exception. The article will deal with difficult problems in judicial practice,with the help of the basic theory of contract relativity and its breakthrough, as well as the theory instruction practice. The framework and the basic content. The article is divided into eight parts. The first part, the judicial interpretation of article twentysix, the drafting of the contents of the practical significance and practical background,confusion. The actual construction can not contract to contract claim,breakthrough of the privity of contract, has certain practical and theoretical significance, but lead to contracts, illegal subcontracting intensified, violated the terms of the original intention of the , from the theory and practice of the face of the terms 3 of the view layer. The second part, the relativity of contract is the cornerstone of the construction of contract law, is the basic guarantee of freedom of contract spirit, without the privity of contract is not the contract freedom and autonomy. The doctrine of privity of contract followed by the national legislation and judicial practice, our country theory, legislation and judicial practice to follow. The third part, with the development of society, the standard of society on the basis of new countries, from the theory to the legislative and judicial practice are breakthrough the contract relativity . The breakthrough of contract relativity , is conducive to a balance between the interests of the parties to the contract and the interests of the third person. But the contract relativity is principle, the breakthrough should be the exception. The construction contract should still follow this rule, regulation of the judicial interpretation should be the subject of liability, application of article twentysix liability of nature and scope. The fourth part, the developer, contractor, subcontractor, affiliated person concepts such as strict distinction between, the developer does not include the subcontractor, illegal subcontractor etc. The actual construction do not include individual construction migrant workers , the terms of actual protection contractor interests, resulting in migrant workers can only enter the construction market in the lower end of the employment contract workers identity. Therefore the actual construction of legal person should be strictly registered. The fifth part, the nature of civil liability and the scope of the subject of liability, the developer, contractor shall bear supplementary liability for actual construction people advocate the engineering section, litigation system of right of subrogation with reference, belonging to v. The subcontractor, 4 illegal subcontractor, link it, people who were affiliated people are jointly and severally liable to the actual construction people advocate the engineering section, Department of unjust enrichment of the unreal joint and several liability based on. The sixth part, the actual construction people to a legal contract or subcontract contractor or subcontractor claims for pensation or project cost claim request right, to the subcontractor, illegal subcontracting, link it, people who were affiliated person advocated the project price, for the unjust enrichment claim refund. Based on the efficiency of litigation, the actual construction people claims for the developer of the contractor who without contract ,the developer of the contractor right of defense against the actual construction people together, and exercise in a v.. The seventh part,but the contract relativity is principle, the breakthrough should be the exception, according to the clause itself from the subject of liability, nature of the liability, liability scope should be clear and according to the clause itself to the absence of supporting systems to improve, through regulating the construction pany registration system, building the market employment system and the social security of migrant workers into the scope of the subcontract, prevent illegal subcontracting growing trend. The eigh