Affiliated construction is a very common phenomenon in the field of construction engineering, and it is also one of the construction behaviors that are most prone to project payment disputes
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Due to the complex legal relationship, in the case of affiliation, once there is a project payment dispute, construction enterprises must clarify the identification of affiliation and relevant provisions in the law and judicial interpretation in order to better realize their project payment rights
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In fact, although affiliation is prohibited by law, the specific concept, legal category, rights and obligations of affiliation are not discussed in detail in China’s existing laws and judicial interpretations
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Therefore, in judicial practice, there are many disputes about the judgment of affiliation construction, Jianyong project fund settlement center analyzes the characteristics of affiliation and the identification standard of affiliation
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Characteristics of attached construction As for affiliation, there is no specific provision for this term in the law and judicial interpretation
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The most direct one is that the Ministry of housing and urban rural development has issued the notice on printing and distributing the administrative measures for the identification, investigation and punishment of illegal acts of construction contract awarding and contracting, which mentions that there are one of the following situations, Affiliated: (1) the unqualified unit or individual borrows the qualification of other construction units to undertake the project（ 2） Qualified construction units borrow qualification from each other to undertake projects, including those with low qualification grade, those with high qualification grade, those with high qualification grade, those with low qualification grade, and those with the same qualification grade（ 3） Under the circumstances specified in items (3) to (9) of the first paragraph of Article 8 of these measures, there is evidence to prove that it is affiliated
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Among them, Article 8 deals with subcontracting behavior
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It can also be seen that in practice, sometimes the boundary between subcontracting and affiliation may not be so clear
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In fact, these Provisions are not specific enough, because affiliation behavior has many specious situations in practice
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Generally speaking, affiliation usually has the following characteristics: 1 The affiliated person does not have the main qualification to engage in construction activities, or has the main qualification to engage in construction activities but does not have the qualification to undertake the corresponding construction project, that is, the construction qualification does not match the qualification required for the construction project
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2
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The affiliated person pays a certain amount of “management fee” to the affiliated enterprise, and the affiliated construction enterprise only signs the contract and goes through various procedures in the name of the enterprise to collect a certain “management fee”
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3
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The affiliated enterprise does not carry out management
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In the process of project implementation, the affiliated person actually undertakes the rights of the affiliated enterprise in the construction contract and undertakes the corresponding technical, quality and economic responsibilities
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Identification standard of affiliated construction The performance of affiliation in practice can be described as various, and the standards of affiliation are different in different courts
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Take Sichuan Province as an example
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The Sichuan high court once issued “solutions to some difficult problems in the trial of construction contract disputes”
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The answers to Article 5 are as follows: borrowing qualification (affiliation) refers to enterprises or individuals without construction qualification in the name of other construction enterprises, Construction enterprises with low qualification level undertake projects in the name of construction enterprises with high qualification level; construction enterprises without construction general contracting qualification undertake projects in the name of construction enterprises with construction general contracting qualification; or construction enterprises with qualification undertake projects in the name of joint venture, cooperation and cooperation Internal contracting and other illegal ways to allow others to contract projects in the name of the enterprise
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The term “contracted project” as mentioned above includes participation in bidding, conclusion of contract, handling of relevant construction procedures, engaging in construction and other activities
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In the trial practice, we can comprehensively determine whether it belongs to the borrowing qualification (affiliation) according to the following situations: (1) the borrowing qualification (affiliation) person usually participates in the bidding in the name of the lending qualification (affiliation) person and signs the construction contract with the employer, and there is no property right connection or labor relationship between the borrowing qualification (affiliation) person and the lending qualification (affiliation) person, No financial management relationship（ 2） More than one of the project director, technical director, quality management director and safety management director dispatched by the borrowing qualification (affiliated) person on the construction site has not signed a labor contract with the lending qualification (affiliated) person, or has not established a labor wage or social endowment insurance relationship（ 3） The operation mode of borrowing qualified (affiliated) person to undertake the project is self financing, self organizing construction, self-management and self financing
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The lending qualification (affiliated) only charges management fee (including the lending account for the purpose of ensuring the collection of management fee), does not participate in the construction and management of the project, and does not bear the engineering technology, quality and economic responsibility（ 4） There is no substantial project payment relationship between the lending qualification (affiliated) person and the employer, and they all pay the project payment in the name of “entrusted payment”, “payment on behalf” and other names, or only post and transfer（ 5） It is stipulated in the construction contract that the lending qualification (affiliated) person shall be responsible for purchasing the main building materials, components, fittings and engineering equipment or leasing the construction machinery and equipment
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In fact, the lending qualification (affiliated) person is not responsible for purchasing and leasing, or the lending qualification (affiliated) person cannot provide the relevant purchasing and leasing contracts and invoices, And can not reasonably explain and provide evidence to prove（ 6） Other conditions of borrowing qualification (affiliation) stipulated by laws and administrative regulations
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epilogue Illegal subcontracting, subcontracting and affiliation are all construction activities prohibited by law, which leads to the concept of “actual constructor”
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However, in judicial practice, different laws and regulations will be applied to judge the illegal subcontracting, subcontracting and affiliation
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Once there is a dispute over project payment, how to determine whether it is more beneficial to oneself and win the lawsuit more steadily, more and faster should be judged according to the specific circumstances of the case
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Generally speaking, it is recommended not to be attached to the construction unless it is necessary
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Once there is a dispute due to the attached construction, it is better to contact a professional project payment lawyer for consultation, otherwise the loss may be expanded How to deal with the “back-to-back” clause of Party B’s project payment! 02: if Party A fails to pay for the project, in addition to the arrears, Party B can also ask Party A for these expenses.
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