Therefore, after such layers of subcontracting of construction projects, the front contractors and contractors of the actual construction party often know little about the employment situation of the actual construction party.
China Construction Engineering Group subcontracts all the projects involved in the construction contract of the construction project to Jiang Xingsheng in the name of the internal project contracting agreement, and the subcontracting agreement shall be invalid according to law.” (2021) Supreme faminshen No.
In practice, illegal subcontracting usually presents such a model.
Therefore, the original judgment held that Sanlian company After contracting the project, the company handed over part of the project to Huang Yanpei for actual construction in the form of internal contracting.
[classic case] (2020) Supreme faminshen No.
Subcontracting and affiliation are highly consistent in terms of external manifestations.
The biggest difference between subcontracting and affiliation is that the actual construction personnel intervene at different time nodes.
“[relevant basis] construction interpretation (I) Article 1 a construction contract signed by a contractor with others for subcontracting or illegally subcontracting a construction project shall be deemed invalid in accordance with the provisions of paragraph 1 of Article 153 and paragraphs 2 and 3 of article 791 of the civil code.
In the case of subcontracting, the actual constructor shall not intervene until the contractor undertakes the project; In the case of affiliation, the actual constructor has been involved in the signing stage.
Once a safety accident occurs, the contradictions between all parties will intensify and it is difficult to coordinate.
Illegal subcontracting refers to the behavior that the contractor subcontracts the unit works or divisional and subdivisional works to other units or individuals in violation of laws and regulations after contracting the project.
It is not improper.
Sanlian company is under the condition that Huang Yanpei’s construction progress is slow In addition, Huang Yanpei claimed in the first instance that he contracted the project involved in the case in the name of 26 branch of Sanlian company and advanced relevant expenses to Sanlian company in the name of 26 branch of Sanlian company.
243, subcontracting “after review, the court believes that…
The legal relationship between the two parties involved in the case does not conform to the affiliated relationship and constitutes illegal subcontracting.
They undertake projects and sign contracts in the name of the contractor.
Article 8 in any of the following circumstances, it shall be recognized as subcontracting, but there is evidence to prove that it belongs to affiliated or independent construction Except for other illegal acts: (1) the contractor transfers all the contracted projects to other units (including the situation that the parent company entrusts the undertaken projects to a subsidiary with independent legal personality after undertaking the construction projects) or individuals for construction; (2) After the contractor dismembers all the contracted projects, it transfers them to other units or individuals for construction in the name of subcontracting; £¨ The general contractor or professional contractor has not assigned project leader, technical leader, quality management leader, safety management leader and other key management personnel, or one or more of the assigned project leader, technical leader, quality management leader and safety management leader has not signed a labor contract with the construction unit and has not established labor wages and social pension Insurance relationship, or the dispatched project leader fails to organize and manage the construction activities of the project, and is unable to make a reasonable explanation and provide corresponding certificates; £¨ The main building materials, components, fittings and engineering equipment purchased by the contractor or the leased construction machinery and equipment agreed in the contract are purchased and leased by other units or individuals, or the construction unit is unable to provide relevant certificates such as purchase, lease contracts and invoices, and can not make a comprehensive interpretation and provide corresponding certificates; (V) The scope of contracting by the professional operation contractor is all the projects contracted by the contractor, and the professional operation contractor calculates all the project price other than the “management fee” paid to the contractor; (6) the contractor directly or in a disguised form transfers all the contracted projects to other units or individuals for construction in the form or name of cooperation, joint venture, individual contracting, etc; （7） The employer of a professional project is not the general contractor or professional contractor of the project, except that the construction unit is the employer in accordance with the contract; (8) the employer of professional operation is not the contractor of the project; (9) There is no project fund collection and payment relationship between the subjects of the construction contract, or the contractor transfers the fund to other units and individuals after receiving the fund, and can not make a reasonable explanation and provide material proof..
Administrative measures for the identification, investigation and punishment of illegal acts of contracting and contracting construction projects Article 7 The term “subcontracting” as mentioned in these Measures refers to the act that a contractor, after contracting a project, fails to perform the responsibilities and obligations agreed in the contract, transfers all the contracted projects or dismembers all the contracted projects to other units or individuals for construction in the name of subcontracting.
On the effectiveness of the contract involved in the case…
138, illegal subcontracting “After examination, the Institute believes that…
In this case, it is agreed in the internal contract signed between Huang Yanpei and Sanlian company that Huang Yanpei needs to obey the arrangement of Sanlian company.
From the opposite side of the legal interpretation method, all subcontracting acts except legal subcontracting are illegal subcontracting.
(affiliation is also one of the situations where the contract is invalid, and the analysis is detailed in the first part) in accordance with the relevant provisions of the civil code and the construction law, the general contractor of the construction project can hand over part of the work contracted by himself to a third party when he has completed the construction of the main structure of the construction project with the consent or approval of the employer.
Following the previous chapter, which combed the three types of invalid construction project contracts that did not obtain or exceed the qualification, borrowed qualification, failed to bid for bidding or invalid bid winning, this paper continues to analyze the remaining three types of situations, namely (1) subcontracting and illegal subcontracting; （2） Signing a contract other than the bid winning contract to reduce the project price in a disguised form, and the contract deviates from the substantive content of the bid winning contract; （3） The employer fails to obtain planning approval procedures such as construction project planning license.
1、 According to the provisions of Articles 7 and 8 of the administrative measures for the identification, investigation and punishment of illegal acts of construction contracting and contracting, subcontracting means that the Contractor fails to perform the responsibilities and obligations agreed in the contract after contracting the project, The act of transferring all the contracted projects or dismembering all the contracted projects to other units or individuals for construction in the name of subcontracting.
According to the provisions of the administrative measures for the identification, investigation and punishment of illegal acts of construction contracting and contracting, illegal subcontracting refers to the behavior that the contractor subcontracts the unit works or divisional and subdivisional works to other units or individuals after contracting the project in violation of laws and regulations.
The actual constructor carries out construction, and the Contractor receives project funds and bears legal liabilities.
Six common situations are listed: (1) the contractor subcontracts the project to an individual; (2) The general contractor or professional contractor subcontracts the project to units without corresponding qualifications; (3) The general contractor subcontracts the construction of the main structure of the project within the scope of the general construction contract to other units, except for the steel structure project; (4) A professional subcontractor subcontracts the non labor operation part of its contracted professional project; (5) The professional operation contractor subcontracts the contracted labor services; (6) In addition to the labor operation expenses, the professional operation contractor also calculates the expenses of main construction materials, large and medium-sized construction machinery and equipment and main revolving materials.
The employer contracts the project to the contractor with the qualification of the employment subject, and the contractor subcontracts the project to the organization or natural person without the qualification of the employment subject, that is, the actual constructor, who pays for the construction and employs workers.
