At most, the above agreement is valid within the affiliated unit and the affiliated construction enterprise, that is, after the affiliated construction enterprise bears the liability for breach of contract or compensation, it can recover from the affiliated unit according to the internal agreement and responsibility.
If it causes economic losses to the employer, it shall be borne by the borrowed lender.
The frequently seen major events such as building collapse and bridge collapse will lead to the accountability of the five main bodies of the construction project, and it is not uncommon for the criminal accountability of quality problems.
Because the affiliation itself does not have legitimacy, the relevant contracts signed for affiliation operation are also invalid contracts.
In the project construction, there are often debt disputes between the borrower and third parties such as suppliers, and the court will judge the borrowed enterprise to bear the payment responsibility.
The unit and person in charge will bear criminal responsibility..
Some construction enterprises are aware of the above huge risks contained in affiliated units, so they try to avoid them by signing contract agreements with affiliated units or individuals and clarifying their rights, obligations and responsibilities.
● the actual constructor and the employer collude with each other, and the actual constructor who borrows the qualification colludes with the employer to damage the interests of the affiliated party of the lending qualification, which is also a high incidence and difficult civil liability.
Article 4 of the interpretation of the Supreme People’s Court on the application of law in the trial of disputes over construction contracts of construction projects stipulates: “The act of a contractor illegally subcontracting or illegally subcontracting a construction project or an unqualified actual construction contractor signing a construction contract with another person in the name of a qualified construction company is invalid.
The behavior of lending qualification belongs to illegal operation, and the legal risk of administrative punishment for affiliation and lending qualification units and relevant personnel.
Article 4 of the judicial interpretation of construction contract of construction project (II) stipulates that if a unit or individual lacking qualification borrows the name of a qualified construction enterprise to sign a construction contract of construction project, and the employer requests the lender and the borrower to bear joint and several liability for the losses caused by the lending qualification such as unqualified construction project quality, the people’s court shall support it.
03 risk of criminal legal liability for lending qualification the construction unit lending qualification not only faces civil and administrative disputes, but also may commit the crime of major safety accident, major safety accident and falsely issuing special VAT invoice.
It may be ordered to suspend business for rectification and reduce its qualification level; if the circumstances are serious, its qualification certificate shall be revoked.” The competent construction administrative department can also record the illegal acts and punishment results of the construction unit into the unit or individual credit file in accordance with Article 14 and 5 of the administrative measures for the identification, investigation and punishment of illegal subcontracting and other illegal acts of construction projects (Trial), publicize them to the society and report them to the Ministry of housing and urban rural development level by level, Publicize on the national construction market supervision and integrity information release platform; The borrowed enterprise will face the legal risk of administrative punishment by the competent construction department.
The project quality is a lifelong responsibility system.
01 civil liability risk of lending qualification some construction enterprises realize that there are certain risks in lending certificates, but they do not necessarily understand the seriousness of them.
Therefore, it is also in the field of construction engineering that the general contracting unit charges management fees by lending qualification (commonly known as affiliated).
Even if the contract stipulates the subject of responsibility and liability for breach of contract, the validity of this clause will not be recognized due to the invalidity of the contract.
● be responsible for the risks and responsibilities of labor and employment.
Article 66 of the construction law of the people’s Republic of China stipulates: “if a construction enterprise transfers or lends its qualification certificate or otherwise allows others to contract projects in the name of the enterprise, it shall be ordered to make corrections, confiscate its illegal income and impose a fine.
In addition, the issue of issuing invoices is involved in the process of lending qualification, or the risk of administrative punishment by the tax department; Lending qualification violates safety management regulations, reduces project quality standards, or causes administrative punishment by the competent administrative department of work safety.
The construction contract signed with the borrowed qualification is invalid.
This paper will discuss the risks of lending general contracting qualification and put forward suggestions on how to prevent and control these risks.
From the perspective of civil legal liability, what is the relationship between lending qualification, borrowing qualification and affiliated qualification? What risks will they face? ● the construction contract signed with the borrowed qualification is invalid.
The people’s court may, in accordance with Article 134 of the general principles of the civil law, collect the illegal income obtained by the party concerned.” The “illegal income” of the borrowed enterprise is the management fee charged.
02 risk of administrative legal liability for lending qualification the state severely crack down on illegal affiliation and subcontracting.
For example: the affiliated unit defaults on the wages of migrant workers, material payment, project quality, construction period and other major problems, major casualty accidents on the construction site, the affiliated person can not be contacted, play missing, etc.
● be responsible for the debts of the project.
● be jointly and severally liable for the project quality.
In practice, the actual constructor often signs a large number of various contracts in the name of the borrowed enterprise.
At this time, the assets of affiliated units are usually not enough to compensate, or even have no assets.
For the workers recruited by the organization or natural person, the employer with the qualification of employment subject shall bear the responsibility of employment subject.
● tax economic risk management fees may be confiscated, and there will be tax economic and legal risks involved in invoicing.
Article 4 of the notice of the Ministry of labor and social security on matters related to the establishment of labor relations stipulates: “construction, mining enterprises and other employing units will project (business) Or the management right is contracted out to an organization or natural person who does not have the qualification of employment subject.
However, this model has huge risks for both lenders and borrowers.
In case of quality problems in the project, the employer may require the company and the actual construction enterprise to bear joint and several liability for compensation.
” In case of industrial injury and labor dispute, the borrowed enterprise shall bear the responsibility of the employer.
