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Home > News Center > Company News > Outsourcing, contracting, subcontracting, subcontracting, within the package, anchored

Outsourcing, contracting, subcontracting, subcontracting, within the package, anchored

PublishDatetime:2017-1-3 11:14:53  Hits:2261

Introduction: Project construction contracting, contracting, subcontracting, subcontracting, within the package, anchored in practice is a very common engineering phenomenon and common legal issues. Correct understanding of these issues and grasp the correct handling of engineering practice is the foundation. However, due to the actual situation of each project is different from the actual operation of the different forms, these relationships are not easy to grasp, easily lead to confusion, especially on the subcontracting, subcontracting, the package, anchored this " "The legal issue is different views. Therefore, this paper mainly for engineering practice in the "three guarantees a rely on" legal issues to a simple summary.

     
The Legal Meaning of "Three Guarantees and One Reliance"

         

          1, Subcontracting

         

                According to China's "Construction Law", "Contract Law", "Construction Quality Management Regulations" and other legal provisions, subcontracting is the contractor contracted projects, the contract within the scope of some of the works by the third person to complete the act. Subcontracting is permitted by law, and legal subcontracting is not prohibited by law. Subcontracting is divided into professional engineering subcontracting and labor subcontracting from the content; from the legal effect, it is divided into legal subcontracting and illegal subcontracting. These two categories in the engineering practice is particularly important, need to focus on grasp.

         

               Professional Subcontracting and Labor Subcontracting

         

               According to "the construction enterprise qualification management regulations", the construction industry enterprise qualification sequence is divided into construction general contracting, professional contracting, labor subcontracting. According to this provision, subcontracting is divided into subcontracting of professional engineering (also known as "engineering subcontracting" in engineering practice) and subcontracting of labor service ("subcontracting" in engineering practice). Both forms of subcontracting are required to be competently qualified and must be carried out within the permissibility of the qualification level. The legal difference between engineering subcontracting and labor subcontracting is whether subcontracting points to sub-divisional projects, whether calculating engineering payments or not, and mastering the difference between subcontracting and subcontracting are helpful to understand the legal effect of subcontracting.

         

                1.2 legitimate subcontracting and illegal subcontracting

         

                According to the subcontract is in line with the law, can be divided into legitimate subcontracting and illegal subcontracting. Legal subcontracting is permitted by law and is valid; illegal subcontracting is prohibited by law and void. Legitimate subcontracting refers to subcontracting in the event of an illegal subcontract. Therefore, understanding, grasp the illegal subcontracting will understand, grasp the legitimate subcontract. According to "Construction Quality Management Regulations," Article 78, paragraph 2 of the provisions of illegal subcontracting mainly refers to the following circumstances:

         

               (1) the general contracting unit subcontracts the construction project to a unit that does not have the corresponding qualifications;

         

              (2) Where there is no agreement in the general contract of the construction project and the construction unit has not been approved by the construction unit, the contracting unit shall complete part of the construction project contracted by other units;

         

              (3) The construction general contracting unit subcontracts the construction of the main structure of the construction project to other units;

         

              (4) The subcontracting unit subcontracts the contracted construction project.

         

               The above is the law on the definition of illegal subcontract, according to the above law, illegal subcontracting legal characteristics are:

         

                1) subcontracting to units that do not qualify;


               2) Subcontracts that are not agreed or approved;


               3) subcontract the main structure construction;


               4) secondary subcontracting.

         

               Therefore, legal subcontracting mainly refers to the subject meets the qualification requirements, professional engineering contracted or approved under the conditions of subcontracting, subcontracting in addition to the main structure of the construction of part of the content, only allowed a subcontract and subcontract point to the content legitimate.

         

               Engineering practice, there are two cases for labor subcontractors need to pay attention to: one is the general contracting unit or professional contractor is not a contract on the labor subcontractor agreed or not recognized by the construction unit will be contracted within the scope of the subcontracting of labor services To other units to complete the situation is illegal subcontracting? If it subcontracts labor services to non-qualified or qualified, but not qualified, subcontractors, if they subcontract the labor operations to subcontracts that are qualified and within the allowable range of qualifications; Qualification permit conditions within the scope of subcontracting, is illegal subcontracting.

         

               In addition, the labor subcontract is illegal, not the contract or the construction unit recognized as a condition. That is, whether the labor subcontract is illegal Subcontract not to "Construction Quality Management Regulations," Article 78, paragraph 2, paragraph 3: "The general contracting of construction projects are not agreed, and without the construction unit recognition, the contractor will Part of its contracted construction projects by other units to complete the "condition.

         

               Because the law provides for the sub-contracting of professional engineering, and labor services are not professional engineering areas, do not need to be agreed or recognized in order to subcontract.

         

               In this regard, "housing construction and municipal infrastructure construction subcontract management approach," Article 14, paragraph 2 of the detailed provisions: "The following acts are illegal subcontracting: ... ... The general contracting contract is not agreed, and Without the approval of the construction unit, the subcontracting contractor will subcontract part of the professional project in the contracted project to others. "This stipulation establishes whether the subcontract is determined according to the contents of the subcontract.

         

                Similarly, labor subcontracting can not be regarded as "secondary subcontracting" and identified as illegal subcontracting.

         

               There is also a situation in the name of labor subcontracting, engineering subcontracting for the real form of subcontracting. According to the "Implementation Opinions on the Qualification Management of Construction Enterprises", labor subcontracting enterprises may apply for all kinds of qualification in this sequence, but may not apply for the general contracting sequence and professional contracting sequence. Thus, labor subcontracting enterprises can only have the qualification of service work, and can not have the construction general contracting or professional contracting qualification, therefore, labor subcontracting enterprises can only accept subcontracting of labor services, and can not accept the engineering subcontracting .

         

               Labor subcontracting and engineering subcontracting the biggest legal difference is whether the subcontracting points to the sub-sub-project, whether to take the project money. The labor subcontract points to the simple labor service which is stripped out in the professional engineering. It is the labor cost of the direct fee and the management fee. The object of the subcontract belongs to the legal labor remuneration. Is divided into sub-projects, taking the direct costs, indirect costs, taxes and profits, the consideration of the law is the "project section."

         

              Engineering practice is often encountered in the labor subcontracting for the name of the sub-project of the sub-contracting behavior, I have been agents of a subcontract case is the case, the court also found that this act is invalid. Because labor subcontracting companies do not have the qualifications of professional contracting, although subcontracting in the name of the implementation of subcontracting behavior, but such behavior is "Construction Quality Management Regulations" Article 78, paragraph 2, paragraph 1 of the construction project Subcontract to the unit does not have the qualifications of the act, is illegal subcontracting behavior.

         

              2, subcontracting

         

               According to Article 78 (3) of the Construction Project Quality Management Regulations, the legal meaning of subcontracting is that the contractor does not fulfill the responsibilities and obligations stipulated in the contract after contracting the construction project, transfer all the construction projects contracted to others or Will be contracted after the dismantling of all construction projects in the name of the subcontract were transferred to other units of the contracting behavior. It is noteworthy that the engineering practice of "as subcontracting" behavior.

         

               In accordance with the Regulations on Subcontracting Construction of Buildings and Municipal Infrastructure Projects and the Provisions on Subcontracting Construction of Water Conservancy Construction Projects, the Employer shall set up a project management organization to organize the construction activities of the contracted projects. The project management institution shall have technical and economic management personnel that are compatible with the scale and technical complexity of the contracted projects. Among them, the person in charge of the project, technical person in charge, the person in charge of project accounting, quality management personnel, security management personnel must be the unit. The standard for the identification of personnel in this unit refers to the legal personnel or labor contracts, wages, and social insurance relations with the entity. The subcontracting project developer shall set up a project management organization at the construction site, and station the corresponding administrative personnel to organize and manage the construction activities of the project. Otherwise, the violation of the above provisions shall be deemed as "subcontracting".

         

                According to the above analysis, the main subcontracting of all subcontracting and dismembered subcontracting two forms. In either case, subcontracting is prohibited by law. Therefore, the subcontract does not exist legally or not, can only be illegal.

         

              Engineering practice and long-term controversy of subcontracting whether subcontracting and whether the invalid question, and finally the dust settles. Article 7 of the Interpretation of the Supreme People's Court on the Application of Law in the Trial of Disputes over Construction Contracts provides that: "A labor subcontract signed by the contractor, the general contractor and the subcontractor with the statutory qualification for labor service operation shall Subcontract construction project illegal legal requirements on the grounds of invalid confirmation request, not support. "Accordingly, the future engineering practice can no longer subcontract as subcontract and invalidated.

         

               3, within the package

         

                Engineering practice, said the "package" is also called "internal contracting." He is a contractor to undertake the project, the project will be handed over to the internal functions of the body responsible for the completion of a business behavior. Practice in the form of the main projects within the Department of contracting, branch contracting. Engineering practice, there are also views that the package is a subcontract of a form and variety, is invalid. But I think that according to the provisions of the law and engineering industry practice, the package should be legal and effective. As the main body of the contractor is the internal organization or branch of the contractor, after the contractor has contracted the project, the act of handing over the project to the internal organization or branch is not a part of the construction law, the contract law, According to the provisions of the Company Law, the internal organs and branches of a legal person do not have independent personality and belong to a part of a legal person, and the legal person is not responsible for the subcontracting of the project to another or the third party according to the Quality Management Regulations. Internal organs or branches of the body responsible for the conduct.

         

               Therefore, the internal organs or branches and legal persons belong to the same subject, and the acts of internal organs or branches are considered as legal persons. The internal organs or branches are not legal persons or third parties. Therefore, the package is only a corporate strategy or means, not subcontract. Article 18 of the "Interim Opinions of the Supreme People's Court on the Trial of Disputes over Contracts in Construction Projects" stipulates that "Contracts for construction projects signed by an internal branch of a contractor with legal personality and signed within the scope of its business license shall be regarded as contracted And the contract shall be valid and shall be settled at the level of the construction qualification of the contractor. "From the spirit of the provisions of the judicial interpretation, the conclusion that the inner package is lawful and valid can also be drawn. This, in the local judicial practice has also been recognized.

         

                "*** Provincial Higher People's Court on the construction of construction contract disputes in a number of issues of opinion" (draft) in several comments in the judicial guidance documents are clearly stated in the first article: "Construction The contractor of the construction contract and his subordinate branch or employee shall be the internal contract of the enterprise in respect of the whole or part of the construction work contracted by the contractor. If the contractor of the internal contract fails to claim the construction contract on the grounds of lack of construction qualification, To support. "

         

             It can be seen, in line with the case of the package construction contract, should not be subcontracted or anchored and found invalid.

         

                4, linked to

         

                Anchored in the current legal sense is mainly refers to the lack of qualified actual construction workers to borrow qualified construction companies in the name of the conduct of construction. That is often referred to in engineering practice "by name contract", "wearing a hat contract." Usually the performance of individuals or enterprises do not have the qualifications and qualified construction enterprises to sign contracts or contracts in the name of the project construction in the form of behavior, affiliated persons generally to be linked to pay a certain "management fee" (or "ideas , The taxpayers' registration certificate, the qualification certificate, the safety production license, the account, the seal and other necessary documents and documents in the project construction, but do not participate in the actual project Construction and management. Calling is prohibited by the law, but it is also common practice in practice. According to Article 9 of the Provisional Opinion of the Supreme People's Court on the Trial of Disputes over Construction Contracts, the forms of anchoring are mainly as follows:

         

                (1) individuals, partnership organizations or enterprises that do not have the qualification to engage in construction activities to undertake construction projects in the name of construction enterprises qualified for construction activities;

         

                (B) the low level of qualification of construction enterprises to high-level qualification of construction enterprises in the name of contract engineering;

         

               (3) The construction enterprise that does not have the qualification of the general project contract shall undertake the project in the name of the construction enterprise with the qualification of the general contract.

         

               Of course, because the situation is very complex in practice, anchored people increasingly high-end means of operation, in engineering practice