The consequences of illegal subcontracting and ill

2022-10-24
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Illegal subcontracting and illegal subcontracting, the consequences are so serious

illegal subcontracting and illegal subcontracting, the consequences are so serious

China Construction machinery information

subcontracting and subcontracting are very common phenomena in actual engineering construction. If you do not subcontract or subcontract in accordance with national laws, it may cause illegal subcontracting and illegal subcontracting. So, what is illegal subcontracting and illegal subcontracting? What kind of laws should the two bear

according to Article 78 of the regulations on the quality management of construction projects:

illegal subcontracting

illegal subcontracting refers to the following acts:

1. The general contractor subcontracts the construction project to a unit that does not have the corresponding qualifications

2. There is no agreement in the general contract of construction project, and without the approval of the construction unit, the contracting unit hands over part of the construction project it contracted to other units for completion

3. The general contractor subcontracts the construction of the main structure of the construction project to other units

4. The subcontractor subcontracts the contracted construction project

after looking at the above points, there is a specific case that has been encountered in reality. That is, if the subcontractor does not have the corresponding qualification conditions at the time of contracting, but has obtained the qualification conditions in the process of performing the subcontract, can it be recognized as illegal subcontracting at this time

according to Article 5 of the interpretation of the Supreme People's Court on the applicable legal issues in the trial of construction contract disputes, the contractor enters into a construction project contract beyond the business scope permitted by the qualification level, and obtains the corresponding qualification level before the completion of the construction project. If the party requests to be handled according to the invalid contract, it will not be supported. It can be inferred that the general contractor contracts some construction projects to subcontractors who do not have the corresponding qualifications. If the subcontractor obtains the corresponding qualification level before the completion of the project, it will not be regarded as illegal subcontracting

illegal subcontracting

illegal subcontracting refers to the behavior that a contractor fails to perform the and obligations agreed in the contract after contracting a construction project, transferring all the construction projects it contracted to others or dismembering all the construction projects it contracted to other units in the name of subcontracting

first, subcontracting is invalid

according to the contract law, the construction law and the regulations on the quality management of construction projects, subcontracting is clearly prohibited. Article 52 of the contract law clearly stipulates that the mandatory provisions in violation of laws and regulations are invalid, and Article 4 of the judicial interpretation further clearly stipulates that the Contractor's illegal subcontracting of construction projects is invalid

secondly, the illegal gains obtained by the subcontractor due to the illegal subcontracting of construction projects shall be confiscated

Article 4 of the judicial interpretation stipulates: "the Contractor's illegal subcontracting, illegal subcontracting of construction projects, or the unqualified actual constructor's signing of construction project construction contracts with others in the name of a qualified construction enterprise is invalid. The people's court may, in accordance with Article 134 of the general principles of the civil law, confiscate the illegal income obtained by the parties."

thirdly, if the quality of the construction project is qualified, the sub contractor can directly claim the project price from the employer

at the International Consumer Electronics Exhibition (CES) held in Las Vegas earlier this year, according to Article 2 of the judicial interpretation, although the subcontract is invalid in the case of subcontracting, if the construction project undertaken by the subcontractor (actual constructor) is qualified, the subcontractor can still claim the project. 2. Quality assurance: the price of the equipment warranty period of 1 year. And according to the provisions of Article 26 of the judicial interpretation, the subcontractor as the actual constructor can directly claim the project price from the employer, and the employer shall bear it within the scope of the price owed to the contractor (subcontractor)

finally, if the project is subcontracted, the subcontractor may also be subject to administrative punishment

the first paragraph of Article 67 of China's Construction Law stipulates: "if the contractor subcontracts the contracted project or subcontracts in violation of the provisions of this law, it shall be ordered to correct, the illegal income shall be confiscated, and a fine shall be imposed. It may be ordered to suspend business for rectification and reduce the qualification level; if the circumstances are serious, the qualification certificate shall be revoked."

Article 62 of the regulations on the quality management of construction projects promulgated and implemented by the State Council stipulates: "If the contractor subcontracts or illegally subcontracts the contracted project in violation of the provisions of these regulations, it shall be ordered to make corrections, the illegal income shall be confiscated, and the survey and design unit shall be fined not less than 25% but not more than 50% of the survey and design fee agreed in the contract. The construction unit shall be fined not less than 0.5% but not more than 1% of the project contract price; it may be ordered to suspend business for rectification and reduce the qualification level; if the circumstances are serious, it shall be suspended." Sales qualification certificate

if the project supervision unit transfers the project supervision business, it shall be ordered to correct, the illegal income shall be confiscated, and a fine of more than 25% and less than 50% of the supervision remuneration agreed in the contract shall be imposed; It can be ordered to suspend business for rectification and reduce the qualification level; If the circumstances are serious, the qualification certificate shall be revoked. "

it can be seen that the subcontracting behavior in China's laws and regulations is not only strictly prohibited, but also stipulates relatively severe punishment measures. Illegal subcontracting and illegal subcontracting of the project are very harmful, which is likely to lead to problems such as the reduction of project quality and the delay of construction period. So be careful

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