Note: In the process of drafting and discussion, this paper was strongly supported by lawyers such as Ye Meifeng, Dong Dong, Bao Congmin of Zeran Institute, Ni Weineng of Sunshine Times Institute, Zhang Xinjia of Shanghai Yiding Institute, and Wang Wencai (CPA certificate+legal professional qualification certificate), a senior financial officer of a central enterprise with a legal registration of 10000 yuan.
In addition, the Ministry of Housing and Urban-Rural Development has recently published a draft for comments on the new standards for the qualification of construction engineering enterprises.
It is really that the internal contractor is unable to advance funds.
The reasons are as follows: the crime of usury requires that the actor must have the purpose of refinancing for profit when obtaining the credit funds of financial institutions, otherwise, it violates the principle of simultaneous existence of behavior and responsibility.
“Internal contracting for economic responsibility of the project” is not the same as “villagers’ land responsibility contracting system” (villagers plant crops and villagers take responsibility), while the project manager does the project, It is the company that takes the responsibility first.
Both parties reached a loan agreement; 2.
Based on the great uncertainty of criminal policy, the author still suggests that construction enterprises should not lend funds to internal contractors, especially when there are bank credit loans or guarantee loans that have not been repaid, and the loan interest should not be higher than the bank loan interest for the same period.
The company is not laissez-faire.
After filing the case, the court, after preliminary examination, found that there were no elements constituting the legal relationship of loan (1.
Welcome to contribute! [Ni Gong’s statement] On the dispute of “borrowing” or “advance” between construction enterprises and internal contractors — Can the “legal relationship of private lending” and “legal relationship of internal contract of project economic responsibility” coexist# According to #, most construction enterprises should have encountered the following situations, when the enterprise took a pile of “IOUs” issued by internal contractors (project managers) to the court to sue for private loans, and demanded repayment of the loans.
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The company is responsible for the safety, quality, progress and external debt of the project.
The funds lent are often directly used for project construction, not for internal contractors or third parties for other purposes or squandering.
On the basis of searching the cases of Zhejiang grassroots courts, the author tells the readers that there is no much controversy about the view that the “legal relationship of private lending” and “legal relationship of internal contract of project economic responsibility” between enterprises and internal contractors can coexist.
Internal contracting is a production organization mode to mobilize the production enthusiasm of the project manager and other management personnel.
Source: This article is the work of external experts.
Legal components of internal contracting: internal contracting to the company’s branches (or functional departments) or employees; The company provides support and coordination in technology, equipment, personnel and funds, and comprehensively supervises and manages the project safety, quality and progress; The internal contractor is responsible for the specific management of the project, raising funds, independent accounting, and self-financing.
There is basically no case of borrowing for the purpose of lending to internal contractors.
The enterprise fulfilled its obligation of delivery in accordance with the loan agreement), and recommended that the enterprise withdraw the lawsuit first, and then file a separate lawsuit according to the basic legal relationship (internal contract) to claim the return of advance (overpayment).
During the construction process, the company will not actively lend to the internal contractor.
However, due to the long construction period, complex project management, difficulties in external settlement, and many construction costs that have not been confirmed by the internal contractor, it is difficult for the enterprise to complete the burden of proof, and cannot or fully recover the advance (overpayment).
However, the purpose of obtaining loans for construction enterprises in the normal operation process is to meet the needs of the company for normal operation and use them for actual construction.
Although the probability of such criminal risk is very small, it will be fatal to entrepreneurs once it occurs.
In order to avoid the project completion, the company cannot explain to the employer.
For this reason, we will publish 3-5 articles and interpretations on the qualification of construction engineering enterprises in the near future to entertain readers.
At this time, when the company appeals to the court to ask the internal contractor to return the money, the internal contractor often raises the following defense: there is no real legal relationship between the two parties for private loans, and the money paid by the company is actually project advances, and the loan is only a form, so the company’s lawsuit should be rejected, and the specific amount of advances by the company should be handled in accordance with the Internal Contract dispute.
At this time, the company will grant the internal contractor’s loan request.
The illegal business behavior in the Opinions on Several Issues Concerning the Handling of Criminal Cases of Illegal Lending requires the actor to “regularly issue loans to unspecified objects of the society for the purpose of profit”, while the construction enterprise often considers lending only when the internal contractor of the company has special circumstances, and will not lend to unspecified objects of the society.
If it is handled according to the internal contract, the difficulty of the company’s loan recovery will be greatly increased: for loss-making projects, the internal contractors often lose their hands at the later stage of the project and no longer manage, nor cooperate with the company to confirm the cost of the company’s expenditure, However, it is difficult for the company to prove the reasonableness of the expenditure amount and expenditure after the company’s acceptance (for example, the normal labor cost is 300 yuan/day, and in order to catch up with the work in the later stage, it is 500 yuan/day, and the extra 200 yuan/day, which is difficult to get support without the approval of the internal contractor).
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This lending relationship is generally considered not to be the act of usury in Article 175 of the Criminal Law and the illegal operation in the Opinions on Several Issues Concerning the Handling of Criminal Cases of Illegal Lending.
When the project loses money or the Employer defaults on the project payment, the internal contractor will not actively repay the loan.
Faced with such a significant risk of uncertain litigation, the enterprise must first withdraw the lawsuit and prepare for it separately.
Laws and regulations on the definition of internal contracting and the generation of lending relationship do not prohibit construction enterprises from adopting internal contracting, which is widely used by construction enterprises in Jiangsu and Zhejiang provinces.
