2.
Dismember the project and illegally “subcontract” or “subcontract” the project to other enterprises in the name of labor subcontracting.
A substantial Engineering Subcontract signed in the name of a labor subcontract between a general contracting enterprise or a professional contracting enterprise and a labor subcontracting enterprise.
Illegal subcontracting without the consent of the employer.
If it is subcontracted to others without authorization, it is illegal and needs to bear the corresponding legal responsibility.
Without the authorization of the employer, the contractor has no right to subcontract the contracted project.
In China, it is more common for contractors to dismember construction projects and draw profits; Then “subcontract” the remaining projects to other enterprises in the name of labor subcontracting.
In essence, the construction project contract is actually a contracting contract, so the construction project contract is of a personal nature.
Such a contract is deemed invalid according to Article 1 of the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract disputes and the contract law.
The project subcontracting enterprise signs a substantial project subcontracting contract with the labor subcontracting enterprise in the name of labor subcontracting contract.
The qualification is actually an access threshold, which is the “access certificate” issued by the state to enterprises, which can be used to measure the strength of an enterprise.
It is not difficult to see from the articles of the contract law that as long as the work contracted by yourself is subcontracted to others, the employer’s consent is required and joint and several liability shall be borne.
It’s not just that some workers can help others.
What’s more, labor subcontracting enterprises subcontract the remaining projects to others for construction, peeling off the skin and extracting profits at all levels, which directly affects the project quality.
From the perspective of civil law theory, this behavior is an unauthorized disposition behavior.
According to Article 272 of the contract law, “the construction of the main structure of the construction project must be completed by the contractor.” Then the contractor dismembers the project and then “subcontracts” part of the project to other enterprises in the name of labor subcontracting is invalid.
Article 272 of the contract law also talks about the issue of qualification, so how does the construction labor service enterprise stipulate it? According to the regulations issued by the Ministry of construction on March 8, 2001 in the qualification standard for labor subcontracting enterprises in the construction industry, qualification is required even for labor subcontracting operations.
This kind of contract will determine the essence of the contractual relationship between the two parties based on the actual content of the contract, the objective facts in the construction and the specific settlement of the two parties.
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3.
Among them, it should be noted that when subcontracting, it must first be approved by the employer.
Without the consent of the employer, it will constitute “illegal subcontracting”, and the subsequent problems will be cumbersome and will bear legal responsibility.
Only when the employer trusts the contractor will the project be handed over to the contractor for construction.
Some of them may be identified as engineering subcontracts, so the rights and obligations of both parties should be reconfirmed only according to the rights and obligations of Engineering subcontracts.
Many enterprises and individuals use the reason of “professional subcontracting” to subcontract the project illegally.
Article 26 of the construction law of the people’s Republic of China and Article 25 of the regulations on the quality management of the construction market clearly stipulate that it is prohibited to contract business beyond qualification, which is consistent with Article 272 of the contract law.
What are the common construction subcontracting labor disputes? 1.
In this way, the contract will be deemed invalid.
If the employer does not ratify it from beginning to end, the behavior is invalid.
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“Illegal subcontracting” without corresponding qualification.
If the project is unqualified only due to the unqualified service quality provided by the labor subcontracting enterprise, the labor subcontracting enterprise will not get legal support if it requests the labor price agreed in the labor subcontracting contract, and it shall also bear the corresponding losses.
There are three situations in which the labor subcontracting of construction engineering is invalid.
1.
3.
In addition, when subcontracting to others, others need to have corresponding qualifications at the same time, otherwise it will also constitute illegal subcontracting.
From the provisions of the contract law, even the “professional subcontracting” needs the consent of the employer.
Labor subcontracting contracts signed between general contracting enterprises and professional construction enterprises that do not have corresponding qualifications.
2.
Treatment of invalid contract: if the project provided by the labor subcontracting enterprise is qualified, the labor subcontracting enterprise shall obtain legal support for requesting labor fees according to Article 2 of the interpretation.
The profits obtained by the engineering subcontracting enterprise due to such acts will be confiscated by the court in accordance with the provisions of Article 4 of the above judicial interpretation, or the construction administrative organ will make the same confiscation punishment.