From the perspective of literal interpretation, both affiliation and subcontracting are the behavior of the contractor contracting the project from the employer, and then the actual constructor obtains the construction of the target project from the contractor.
Affiliated construction is not uncommon in the field of construction engineering construction.
（2） Analysis of legal relationship under the background of affiliation, based on the completed output value, the actual constructor obtains the corresponding project funds according to the affiliation agreement, but according to the existing legal system, the affiliation agreement is invalid, the factual basis for the actual constructor to claim the project funds from the contractor is missing, and based on the relativity of the contract, the actual constructor is not the contract subject of the construction contract, The actual constructor cannot claim from the employer; As a result, the actual constructor lacks the legal and factual basis for claiming rights from either the employer or the contractor.
When the contractor pays the project funds to the contractor, the contractor will pay to the actual constructor after deducting the management fees and taxes.
This paper intends to analyze this issue, analyze the subject of actual obligation of project payment based on the true meaning of affiliation, and provide relevant suggestions for the contractor to prevent risks.
The administrative measures for the identification, investigation and punishment of illegal acts such as construction subcontracting (Trial) (hereinafter referred to as the “measures for the identification of Engineering illegal acts”) stipulates that subcontracting refers to the act that the construction unit fails to perform the responsibilities and obligations agreed in the contract after contracting the project, and transfers all the contracted projects or dismembers all the contracted projects to other units or individuals for construction in the name of subcontracting; Affiliation refers to the act of a unit or individual contracting projects in the name of other qualified construction units.
However, the agreement stipulates that the contractor will hand over the project to the actual constructor for construction, and the actual constructor needs to make independent accounting Operate independently and be responsible for its own profits and losses.
As the cost of qualification lending, the contractor obtains the management fee and construction performance.
Such agreements are often preceded by internal contracting agreement and cooperative operation agreement.
02 analysis of legal relationship under affiliation (I) effectiveness of affiliation agreement after winning the bid or signing the construction contract of the construction project, the contractor needs to sign the affiliation agreement with the actual constructor to agree to pay the project to the actual constructor.
If the actual constructor requires the employer to directly bear the responsibility for the payment of the project price, it shall be supported..
However, the Supreme Court clearly distinguishes between affiliation and subcontracting in (2019) Supreme FA min Shen No.
Therefore, in the context of affiliation, the employer, the contractor and the actual constructor reach an agreement, and the actual constructor backdoor construction, and the contractor is the real “third party”.
From the above provisions and the Supreme Court’s point of view, under the real affiliation, the employer plans to deliver the project to the actual constructor who is familiar with or highly involved in interests; Due to the qualification of the actual constructor, the employer and the actual constructor introduce the contractor, and the actual constructor borrows the Contractor’s qualification for construction.
From the perspective of creditor’s rights and debts, the employer is the right subject of the project, and it has the obligation to pay the project funds downward; From the analysis of the efficiency of dividing and stopping disputes, the contractor only has the obligation of transfer payment, and there is an uncertain risk of capital flow through the Contractor’s payment, so the payment from the employer to the contractor is the most efficient and convenient; And combined with the meaning of affiliation; That is, the employer actually hands over the project to the actual constructor for construction, and the actual constructor has the right to claim creditor’s rights against the employer.
When the project quality is qualified, he has the right to obtain the corresponding project funds.
The actual constructor in the subcontracting generally does not participate in bidding and conclude the general contract, and his willingness to undertake the project is generally after the signing of the general contract; The contract signed by the contract letting party or its agent in the construction stage is the contract signed by the contract letting party or its agent.
Therefore, under the affiliated relationship, the subjects of creditor’s rights and debts are the employer and the actual constructor, and the contractor has and needs to bear corresponding responsibilities only when it fails to fulfill the transfer obligation.
729.
The Supreme Court held that the distinction between subcontracting and affiliation should be judged mainly from whether the actual constructor (affiliation) has participated in the activities of contracting and negotiation stages such as bidding and contract conclusion; Subcontracting means that the contractor generally transfers the rights and obligations of the project to the actual constructor after undertaking the project.
However, according to Article 66 of the construction law, Article 1 of the interpretation of the Supreme People’s Court on the application of law to the trial of construction contract disputes (I) (hereinafter referred to as “Si Jie I”), Article 61 of the regulations on the quality management of construction projects and other relevant provisions, such contracts shall be invalid contracts.
The evolution of legal relationship has a direct impact on the payment path and the subject of receipt and payment of project funds, resulting in disputes over the subject of project payment obligation under the background of affiliation.
Such agreements seem to avoid the risk of the actual constructor claiming the project funds from the contractor in form.
This paper distinguishes affiliation from subcontracting, and obtains the true meaning of affiliation through comparative analysis.
03 analysis of judicial views under affiliated items (I) local views “solutions to some difficult problems in the trial of construction contract dispute cases by Sichuan Higher People’s court” states: “The employer knows and recognizes that the actual constructor borrows the qualification for construction, and can confirm that the employer actually establishes the construction contract relationship with the actual constructor.
01 the true meaning of “affiliation” is to distinguish the true meaning of affiliation.
However, the actual constructor has entered the site and completed all or part of the output value.
Different from the normal issuance and contracting relationship, the employer and the contractor (affiliated person) intervene in the main body of the actual constructor (affiliated person) in the affiliated construction, and the legal relationship is complicated.
