(3) The contract forms are different.
In addition, the responsibilities in the subcontracting relationship are also different.
It can be seen from this provision 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.
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The subject matter of the contract is small, and there are generally no contract requirements for the ordering party; The contractor may be a qualified legal person, or other units or individuals.
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.
(4) The procedures for part of the work to be completed by a third person are different.
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.
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”.
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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.
Therefore, the contract can be either oral or written.
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Therefore, article 808 of the Civil Code stipulates: “where there are no provisions in this chapter, the relevant provisions of the contract of work shall apply.” Although the construction contract is a special contract in nature, there are still obvious differences between the two: (1) different subject requirements.
(2) Subject to different administrative constraints.
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 “…
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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.
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 disputes over construction contracts of construction projects (I) stipulates: “If a party requests to confirm that the construction contract of the construction project is invalid 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.
The State implements strict management and control, and the party autonomy is restricted by public power.
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.
Q: what is the difference between construction contract and contract? A: the first paragraph of article 770 of the Civil Code stipulates: “A contract of 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 legal issues applicable to the trial of construction contract disputes (I), the construction contract of a construction project shall be deemed invalid in accordance with the provisions of paragraph 1 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.
hooking up with high net worth groups) editor’s note: This article is excerpted from the civil trial practice Q & a compiled by the first division of civil trial of the Supreme People’s Court (Law Press, first edition, July 2021).
Construction project is a special product involving public interests and security.
