Article 789 of the civil code clearly stipulates that “the construction project contract shall be in written form”, but does not specify the form of the contract.
According to the second paragraph of article 791 of the civil code, when the general contractor of the construction project entrusts part of the work to a third party for completion, it must obtain the consent of the employer.
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Therefore, the contract can be either oral or written.
4 the procedures for part of the work to be completed by a third party are different.
1 subject requirements are different.
The first paragraph of article 770 of the Civil Code stipulates that “a contract of hired work is a contract in which the contractor completes the work and delivers the work product in accordance with the requirements of the ordering party, and the ordering party pays remuneration”.
According to the provisions of Article 1 of the interpretation of the Supreme People’s Court on the applicable legal issues in the trial of construction contract dispute cases (I), the construction contract of construction project has one of the following circumstances, It shall be deemed invalid according to the first paragraph of Article 153 of the Civil Code: the contractor has not obtained the qualification of a construction enterprise or exceeds the qualification level; An unqualified actual constructor borrows the name of a qualified construction enterprise; If a construction project must be subject to bidding but fails to do so or the bid is invalid.
The State implements strict management and control, and the party autonomy is restricted by public power.
It can be seen from this regulation that the employer shall be qualified for contracting after the construction project has been subject to feasibility study, project approval and planning approval; The construction subject implements the market access system, and the contractor must be a legal person with corresponding qualifications.
However, paragraph 2 of article 772 stipulates that “if the contractor entrusts the main work contracted to a third party for completion, it shall be responsible to the ordering party for the work results completed by the third party; without the consent of the ordering party, the ordering party may also terminate the contract”.
For example, The first paragraph of Article 3 of the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract disputes (I) stipulates: “If a party requests to confirm the invalidity of the construction contract on the ground that the employer has not obtained the planning approval procedures such as the construction project planning license, the people’s court shall support it, except that the employer has obtained the planning approval procedures such as the construction project planning license before filing a lawsuit.” The contracting contract is mainly based on the agreement of the parties, and the administration generally does not intervene.
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3 contract forms are different.
The subject matter of the contract is small, and there is generally no contract awarding requirement for the ordering party; The contractor may be a qualified legal person, or other units or individuals.
According to Article 773 of the civil code, the contractor has the right to entrust part of the auxiliary work to a third party without the consent of the ordering party.
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Therefore, article 808 of the Civil Code stipulates: “if there are no provisions in this chapter, the relevant provisions of the contract of hired work shall apply.” Although the construction contract of construction project belongs to a special contract of contract in nature, there are still obvious differences between the two: No.
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The first paragraph of article 788 stipulates: “a construction project contract is a contract in which the contractor carries out the project construction and the employer pays the price.” Construction project contract is actually a special type of contract.
The third party shall be jointly and severally liable to the employer with the general contractor or the survey, design and construction contractor for the work results they have completed…” That is, after the construction project is subcontracted, the subcontractor and the general contractor shall jointly bear joint and several liabilities to the employer for the work results.
2 subject to administrative constraints, different construction projects are special products involving public interests and safety.
In addition, the responsibilities in the subcontracting relationship are also different.
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According to articles 772 and 773 of the civil code, the sub contractor shall be responsible to the contractor for the completed work after the subcontracting of the contract; The second paragraph of article 791 of the Civil Code stipulates that “…
