my country's laws, regulations and "Judicial Interpretations" clearly prohibit subcontracting and make clear provisions on the handling of subcontracting.
Article 26 of the "Construction Law" stipulates that units contracting construction projects shall hold qualification certificates obtained in accordance with the law and be within the business scope permitted by their qualification levels Undertake projects. Construction companies are prohibited from exceeding the business scope permitted by the company's qualification level or contracting projects in the name of other construction companies in any form. Construction companies are prohibited from allowing other units or individuals in any form to use the qualification certificates and business licenses of the company's Principles of Legal Handling of Subcontracting Disputes in Construction Project Contracts to undertake projects in the name of the company.
Article 67, Paragraph 1 of the "Construction Law" stipulates: If a contracting unit subcontracts the contracted project, or subcontracts it in violation of the provisions of this Law, Orders to make corrections, confiscation of illegal gains, and fines, may be ordered to suspend business for rectification, and lower the qualification level; if the circumstances are serious, the qualification certificate shall be revoked.
Article 25 of the "Construction Project Quality Management Regulations" promulgated and implemented by the State Council stipulates that the construction unit shall obtain the corresponding level of qualification certificate in accordance with the law, and shall obtain the corresponding level of qualification certificate at its qualification level. Undertake projects within the scope. Construction units are prohibited from exceeding the business scope permitted by their own qualification level or undertaking projects in the name of other construction units. A construction unit is prohibited from allowing other units or individuals to undertake projects in its name.
Article 62 of the "Construction Project Quality Management" stipulates: If a contractor violates the provisions of these regulations and subcontracts the contracted project or subcontracts illegally, it shall be ordered to Correction, illegal gains will be confiscated, and the survey and design units will be fined not less than 25% and not more than 50% of the survey fees and design fees agreed in the contract; the construction units will be fined not less than 0.5% of the project contract price. A fine of less than 1% may be imposed; the company may be ordered to suspend business for rectification and the qualification level may be lowered; if the circumstances are serious, the qualification certificate may be revoked. If a project supervision unit transfers its project supervision business, it shall be ordered to make corrections, its illegal gains shall be confiscated, and a fine of not less than 25% but not more than 50% of the supervision remuneration stipulated in the contract shall be imposed; it may be ordered to suspend operations for rectification and reduce its qualification level; if the circumstances are serious, , revoke the qualification certificate. It can be seen that our country’s laws and regulationsSubcontracting is not only strictly prohibited, but also imposes relatively severe penalties.
Articles 3 and 16 of the Ministry of Construction's "Regulations on the Qualification Management of Construction Enterprises" stipulate that only after a construction enterprise has obtained the corresponding level of qualification certificate can it Engage in construction activities within the scope permitted by their qualification level. No unit or individual may alter, forge, lend or transfer the "Construction Enterprise Qualification Certificate"; the "Construction Enterprise Qualification Certificate" may not be illegally withheld or confiscated.
Article 1 of the "Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Cases concerning Construction Project Contract Disputes" stipulates that a construction project construction contract has one of the following circumstances: , shall be determined to be invalid in accordance with the provisions of Article 52 (5) of the Contract Law:
(1) The contractor has not obtained the qualification of a construction enterprise or Beyond the qualification level;
(2) An unqualified actual constructor borrows the name of a qualified construction enterprise;
(3) The construction project must be invited to bid but the bid is not invited or the winning bid is invalid. Article 4 of the "Interpretation" also stipulates that any illegal subcontracting or illegal subcontracting of construction projects by a contractor or an unqualified actual constructor who borrows the name of a qualified construction enterprise to sign a construction project construction contract with others is invalid. The people's court may confiscate the illegal gains obtained by the parties in accordance with the provisions of Article 134 of the General Principles of the Civil Law. Obviously, laws, regulations, including rules and judicial interpretations have prohibitive provisions and negative evaluations on project affiliation.
Article 26 of the "Judicial Interpretation" stipulates: If the actual constructor sues a subcontractor or an illegal subcontractor as the defendant, the People's Court shall accept the case in accordance with the law. If the actual constructor claims rights against the contractor as the defendant, the people's court may add the subcontractor or illegal subcontractor as a party to the case. The contractor shall only be liable to the actual constructor within the scope of the unpaid project price. That is to say, when the actual constructor claims the price from the contractor, the contractor shall bear the responsibility within the scope of the unpaid project payment. The outstanding project payment here shall refer to the project price owed by the contractor to the construction general contractor based on the general contract contract. . That is to say, when the actual constructor claimed the project price from the contractor, the contractor paid the price that should have been paid directly to the general contractor of construction directly to the actual constructor within the scope of the price that was owed to the general contractor of construction, provided that There are two reasons. First, the contract developer owes the price to the general contractor of the construction. Second, the general contractor of the construction owes the price to the actual builder. The author believes that at this time, the actual builder's right to directly claim the project price from the contractor is similar to exercising the right of subrogation of creditor's rights.That is to say, the amount of price claimed by the actual constructor can only be claimed from the contractor within the amount of the general construction contract price owed by the contractor.
As mentioned above, my country’s Contract Law, Construction Law and Construction Project Quality Management Regulations all clearly prohibit subcontracting. my country’s Contract Law Article 52 of "Article 52" clearly stipulates that mandatory provisions that violate laws and regulations are invalid. Article 4 of "Judicial Interpretation" further clearly stipulates that illegal subcontracting of construction projects by contractors is invalid.
Secondly, the illegal gains obtained by the subcontractor from illegally subcontracting construction projects must be confiscated. Article 4 of the "Judicial Interpretation" stipulates: The contractor's illegal subcontracting, illegal subcontracting of construction projects, or the act of an unqualified actual constructor borrowing the name of a qualified construction enterprise to sign a construction project construction contract with others is invalid. The People's Court may confiscate the illegal gains obtained by the parties in accordance with Article 134 of the General Principles of the Civil Law.
In construction project practice, the subcontractor’s illegal income is usually in the form of management fees. Therefore, in the case of subcontracting, the subcontractor does not actually have any To manage the construction activities of subcontractors, the management fees collected by the subcontractors should be confiscated as illegal gains.
Thirdly, if the quality of the construction project is up to standard, the subcontractor can directly claim the project price from the contractor. According to Article 2 of the "Judicial Interpretation", although the subcontracting contract is invalid in the case of subcontracting, if the quality of the construction project undertaken by the subcontractor (actual constructor) is qualified, the subcontractor can still claim the project price, And in accordance with the provisions of Judicial Interpretation 26, the subcontractor as the actual constructor can directly claim the project price from the contract developer, and the contract developer shall be liable to the extent of the price owed to the contractor (subcontractor).
Finally, if the project is subcontracted, the subcontractor may also be subject to administrative penalties. Paragraph 1 of Article 67 of my country's Construction Law stipulates: If a contracting unit subcontracts a contracted project, or subcontracts in violation of the provisions of this law, it shall be ordered to make corrections, its illegal gains shall be confiscated, and a fine shall be imposed. It may be ordered to suspend operations for rectification. , reduce the qualification level; if the circumstances are serious, the qualification certificate will be revoked.
Article 62 of the "Construction Project Quality Management" promulgated and implemented by the State Council: In violation of the provisions of these regulations, the contracting unit shall subcontract or illegally subcontract the contracted project. If a violation is found, it shall be ordered to make corrections, the illegal gains shall be confiscated, and the surveying and design units shall be fined not less than 25% but not more than 50% of the survey fees and design fees agreed in the contract; the construction unit shall be fined % of the contract price of the project. A fine of not less than 0.5% but not more than 1% may be imposed; the person may be ordered to stopIf the circumstances are serious, the qualification certificate will be revoked. If a project supervision unit transfers its project supervision business, it shall be ordered to make corrections, its illegal gains shall be confiscated, and a fine of not less than 25% but not more than 50% of the supervision remuneration stipulated in the contract shall be imposed; it may be ordered to suspend operations for rectification and reduce its qualification level; if the circumstances are serious, , revoke the qualification certificate. It can be seen that our country's laws and regulations not only strictly prohibit subcontracting, but also stipulate relatively severe penalties.
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