In order to avoid the investigation by the regulatory authorities, the forms of engineering subcontracting are more and more diversified, such as cooperation, joint venture, internal contracting and so on. More commonly, the parent company subcontracts all the winning projects to its subsidiaries. The reason is that the parent company is generally a large-scale construction group enterprise with high construction qualification level and strong competitiveness in the bidding market. In order to improve the possibility of winning the bid, the bid is often made in the name of the parent company, and the project after winning the bid is implemented by the subsidiary.
Then, is it illegal to subcontract the projects undertaken by the parent company to subsidiaries? This phenomenon has caused great controversy in the judicial field. To this end, I specially wrote an article to analyze and study, aiming at attracting jade.
First, the concept and form of subcontracting
The third paragraph of Article 78 of the Regulations on Quality Management of Construction Projects stipulates: "Subcontracting as mentioned in these Regulations refers to the behavior that the contractor fails to perform the responsibilities and obligations agreed in the contract after contracting the construction project, and transfers all the contracted construction projects to others or dismembers them and then transfers them to other units in the name of subcontracting." From the definition of subcontracting, there are two forms of subcontracting, one is direct subcontracting, and the other is to hand over all engineering construction to other units or individuals through dismemberment subcontracting. In recent years, new subcontracting forms have only developed under these two forms.
The Ministry of Housing and Urban-Rural Development issued the Administrative Measures for Determining and Investigating Illegal Acts of Contracting out Construction Projects (Urban Construction Regulation [20 19] 1) on October 9, 20/KLOC-0.
(1) The contractor will transfer all the contracted projects to other units (including the case that the parent company will hand over the undertaken projects to subsidiaries with independent legal personality after undertaking the construction projects) or individuals;
(2) The contractor dismembers all the contracted projects and transfers them to other units or individuals in the name of subcontracting;
(3) The general contractor or specialized contractor is not equipped with key management personnel such as project leader, technical leader, quality management leader and safety management leader, or one or more of the equipped project leaders, technical leaders, quality management leaders and safety management leaders have not signed a labor contract with the construction unit, and have not established the relationship between labor wages and social endowment insurance, or the equipped project leader has not organized and managed the construction activities of this project, and cannot make reasonable explanations and provide corresponding certificates;
(4) The main building materials, building components, engineering equipment or leased construction machinery and equipment agreed by the contractor in the contract are purchased or leased by other units or individuals, or the construction unit cannot provide relevant certificates such as purchase and lease contracts and invoices, and cannot make reasonable explanations and provide corresponding certificates;
(5) The scope contracted by the professional operation contractor is all the projects contracted by the contractor, and the professional operation contractor collects all the project price except the "management fee" paid to the contractor;
(six) the contractor directly or in disguised form transfers all the contracted projects to other units or individuals through cooperation, joint venture, individual contracting and other forms or names;
(seven) the contractor of a professional project is not a general contractor or a professional contractor, except that the construction unit acts as a contractor according to the contract;
(eight) the contractor of professional work is not the contractor of the project;
(9) There is no payment relationship between the parties to a construction contract, or the contractor transfers the money to other units and individuals after receiving the money, and cannot make a reasonable explanation and provide material proof.
Where two or more units form a consortium to contract projects, it is stipulated in the division of labor agreement of the consortium or in the actual implementation of the project that one party of the consortium does not carry out construction or organize and manage construction activities, and collects management fees or other similar fees from other parties of the consortium, it shall be deemed that one party of the consortium subcontracts the contracted projects to other parties of the consortium. "
Compared with the Administrative Measures for Identification and Investigation of Illegal Subcontracting of Construction Projects (Trial) (Jianshi [2065438+04] 1 65438+08) which came into effect on October/October/2065, The Administrative Measures for Identification and Investigation promulgated by the Ministry of Housing and Urban-Rural Development in 20 19 not only stipulated that the contractor did not send engineers and technicians to take charge of the project construction, but also considered that the contractor of professional projects and professional operations was not the project contractor, and one party of the consortium subcontracted the contracted projects to other parties of the consortium, and also clearly determined that the parent company's behavior of handing over the projects to its subsidiaries was subcontracting.
However, the Administrative Measures for Identification and Investigation is only a departmental regulation. According to Article 4 of the Provisions of the Supreme People's Court on Citation of Laws, Regulations and Other Normative Legal Documents in Judgment Documents, it cannot be used as a reference for judicial judgment. Therefore, there is still great controversy in judicial practice whether the parent company will hand over the construction of the project to the subsidiary company as a subcontract.
Second, how to identify the behavior nature of the parent company's bidding subsidiary construction?
(A) the parent company to the subsidiary company to undertake the project to implement the "subcontracting" behavior of the realistic analysis
The first view: it is not considered as "subcontracting"
Case 1: Shanghai No.1 Intermediate People's Court (20 18) Shanghai 0 1 Minzhong 12704 (China Railway Huahai)
In this case, Z Company is the contractor of the project involved. When Z Company signed a contract with the former Shanghai B Management Office, China Railway Huahai Company was a subsidiary of Z Company. After undertaking the project involved, Z Company asked its subsidiary China Railway Huahai Company to set up a project department to be responsible for the construction of the project involved, with overall contracting and independent accounting. Regarding whether China Railway Huahai Company is the actual construction party, the Shanghai No.1 Intermediate People's Court held: "The behavior of Z Company handing over the disputed project to the appellant should be recognized as the task allocation within the group, not the subcontracting mentioned by the appellant. Therefore, the appellant, as the actual construction party, asked the two appellees to pay the project payment and interest, which lacked factual and legal basis and was not supported by our court.
The second view is that it belongs to subcontracting.
Case 2: the Supreme People's Court (20 17) the Supreme People's Court No.743 (inside China Railway No.4 Bureau)
On the nature and effectiveness of "A 10 Contract Section Construction Contract Agreement". The Supreme People's Court thinks: Article 4 of the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Construction Contract Disputes stipulates: "The contractor's illegal subcontracting, illegal subcontracting of construction projects or unqualified actual builders' signing construction contracts with others in the name of qualified construction enterprises is invalid ..." The project involved was won by the employer Ningde Expressway Company and the winning bidder in June 5438+1October 65438+July 2009. However, on June 5438+February 65438+May 5, 2009, the seventh company of China Railway Fourth Bureau (Party A) and the fourth engineering company of No.15 Metallurgical Company (Party B) signed the construction contract agreement of contract section A 10. In the end, part of the project involved was undertaken by China Railway Fourth Bureau and Seventh Company, and part was undertaken by No.4 Engineering Company of No.15 Metallurgical Company. The construction proportion of China Railway No.4 Bureau and No.7 Company is above 20%, and the construction proportion of No.4 Engineering Company of No.15 Metallurgical Company is above 70%. China Railway Fourth Bureau and Fourth Company is a subsidiary of China Railway Group and an independent legal person. China Railway Fourth Bureau and Seventh Company is a subsidiary of China Railway Group, not an independent legal person. The Fourth Engineering Company of the 15th Metallurgical Company is a subsidiary of the 15th Metallurgical Company, not an independent legal person. As a result, the winning bidder, China Railway No.4 Bureau and No.4 Company, did not actually carry out the construction, but transferred the project to China Railway No.4 Bureau and No.7 Company, and more than 70% of the project was subcontracted to No.4 Engineering Company of No.15 Metallurgical Company for construction. According to the above legal provisions, this case involves the contract agreement of contract section A 10 of June 2009 17 and the contract agreement of June 65440. "
Case 3: Jinan Intermediate People's Court of Shandong Province (20 13) Jiminwuzhongzi No.566 (Shandong Construction Engineering)
Jinan Intermediate People's Court held that Jianda Real Estate Company, as the employer, signed a construction contract with the provincial construction company as the contractor, and the provincial construction company undertook the project involved. After the provincial construction engineering company contracted the project, the third provincial construction engineering company contracted part of the thermal insulation project to Zheng Heng Company for construction, and signed the project contract and supplementary contract. The Third Provincial Construction Engineering Company has the qualification of an independent legal person and independently bears civil liability according to law, belonging to an independent construction enterprise. Therefore, the provincial construction engineering company will hand over its general contracting project to its subsidiary, the Provincial Construction Engineering Company III, for construction and management, and both parties shall regard it as subcontracting.
From the above judicial cases, it can be seen that after the promulgation of the Administrative Measures for Identification and Investigation, there are still two completely different views on whether the parent company undertakes the project subcontracted by the subsidiary.
(B) The theoretical analysis of the "subcontracting" behavior of parent-subsidiary companies.
Theoretically, there are only two views on the subcontracting nature between parent company and subsidiary company:
The first view is that it should be an internal management model, or a "special internal organizational management relationship".
The second view is that both parent and subsidiary companies have independent legal personality, and subcontracting between parent and subsidiary companies is no different from subcontracting between other units and should not be treated differently.
There are two reasons to support the first view (that is, "special internal organizational management relationship"):
First, the parent company handed over the winning project to the subsidiary company for construction, and the debtor's qualification and ability did not change substantially, which did not harm the interests of creditors and did not conflict with the value of the creditor's rights transfer system. This relationship is a special internal organizational management relationship.
Second, the parent company has absolute control over the subsidiary based on its holding position, and the management documents of the parent company are directly binding on the subsidiary, which is enough to ensure that the project contract can be carefully organized and implemented in strict accordance with the management requirements of the parent company after the parent company is handed over to the subsidiary, thus ensuring the performance quality of the project. "
I tend to support the second view because:
First, the Ministry of Housing and Urban-Rural Development sent a request letter to the the National People's Congress Standing Committee (NPCSC) Law Committee (hereinafter referred to as the Law Committee) on this issue, and NPC Law Committee put forward opinions (No.20 17, hereinafter referred to as the opinions) on whether to determine the application of the law with a retrospective period of two years for administrative punishment after the parent company of a construction enterprise undertook the project and handed it over to its subsidiaries for subcontracting. The first point is that, in combination with the provisions of Article 28 of the Construction Law, Article 272 of the Contract Law and Article 48 of the Bidding Law, the provisions of the above laws on subcontracting of construction projects are clear. This problem belongs to law enforcement and should be identified and handled according to the actual situation. "Obviously, the NPC Law Committee does not agree that' whether the parent company entrusts the construction project to the subsidiary company for implementation is subcontracting' can break through the special problems of subcontracting in current laws and regulations, let alone admit its legitimacy. The reason why it is not directly recognized as subcontracting in the Opinions is mainly due to the different situations in which the parent company entrusts the construction project to its subsidiaries for illegal subcontracting and affiliation, so it is expressed as "legally recognized and handled according to the actual situation". It is clear in the Opinions that whether the parent company promises to hand over the execution of the company to the subsidiary company is subcontracting is only a law enforcement issue, and it should still be judged according to the existing laws and regulations. According to Article 28 of the Construction Law and Article 272 of the Contract Law, it is forbidden for a contractor to subcontract all the construction projects he contracted to others, and it is forbidden for a contractor to dismember all the construction projects he contracted and subcontract them to others in the name of subcontracting. Paragraph 1 of Article 48 of the Law on Tendering and Bidding stipulates: "The winning bidder shall fulfill its obligations as agreed and complete the winning project. The winning bidder shall not transfer the winning project to others, nor shall it dismember the winning project and transfer it to others separately. "As an independent legal person, a subsidiary has its own independent property. The subsidiary and the parent company are responsible for their own property and are independent of the parent company. At this point, we can't be confused. Whether it is a wholly-owned subsidiary or a holding subsidiary, it is still "other" in legal nature relative to the parent company.
Second, the parent company is an independent subject of civil liability, and there are bound to be differences in qualification level, capital, technology and project management experience. Generally speaking, the parent company is a large-scale construction group enterprise with high construction qualification, strong financial and technical strength and rich project management experience, which is also an important reason for undertaking projects in the name of the parent company rather than the subsidiary company. If the parent company is allowed to undertake the project and then hand it over to the subsidiary company for implementation, it is difficult for the employer to actually inspect the capital, management, technology and personnel of the subsidiary company, and it is impossible to screen the qualification and performance ability of the subsidiary company through the bidding procedure, which obviously violates the fair competition principle of the Bidding Law and the mandatory management provisions of laws and regulations on the qualification of construction enterprises.
Third, the parent company's control over its subsidiaries is more reflected in capital control than business control. Subsidiaries have their own articles of association and internal rules and regulations. In practice, the group management documents of the parent company have many connections with the rules and regulations of the subsidiaries, but the subsidiaries do not need to fully abide by the relevant system provisions that cannot be reflected in the group management documents. The articles of association of a subsidiary are the articles of association of the company. The parent company can not only guarantee the performance ability of its subsidiaries, but also guarantee the quality of its construction projects.
Thirdly, the legal risk analysis of the subcontracting project of parent-subsidiary company.
(1) civil liability
1. Be jointly and severally liable for the project debt.
Although the parent company and the subsidiary company are independent legal persons, in internal management, the subsidiary company is often managed by the parent company, and there is some contact and confusion in personnel and finance. Based on this, in judicial practice, the parent company and its subsidiaries are often required to bear joint and several liability for the debts arising from the project implementation.
Such as (20 13) Lu Min Tizi No.268 case, whether Jinan Jianyi Group Company should bear joint liability in this case. The Higher People's Court of Shandong Province said: "Jinan No.1 Construction Group Company and the companies directly under Jinan No.1 Construction Company have independent legal personality. The original trial has found out that the company directly under Jinan No.1 Construction Company does not have the corresponding engineering installation and construction qualifications, and the offices and business premises of both parties are in the same place. The original trial ruled that Jinan No.1 Construction Group Company and the directly affiliated company of Jinan No.1 Construction Company have the characteristics of subject confusion and belong to the recognized scope of authority. After Jinan Jianyi Group Company contracted the project of surabaya county Administrative Service Center, it subcontracted the installation part of the project to its unqualified subsidiary, Jinan Jianyi Company, which subcontracted the whole project to Shandong Shengji Company (Jinan Jianyi Company only charged management fees). This behavior has been confirmed to be invalid, and Jinan Jianyi Group Company should bear the main fault liability. In the case that Jinan Jianyi Group Company has no evidence to prove that it has paid the project payment to Jinan Jianyi Company, the original judgment found that Jinan Jianyi Group Company was jointly and severally liable for the project payment and interest owed to Shandong Shengji Company by Jinan Jianyi Company for the installation project involved. "In the case of (20 18) No.420, Ji 04 Minzhong, the Intermediate People's Court of Liaoyuan City, Jilin Province held that:" Liaoning Chengda Company and its wholly-owned subsidiary Liaoyuan Chengda Company are two independent legal entities, and it is illegal to subcontract all contracted projects to Liaoyuan Chengda Company for construction, so Liaoning Chengda Company and Liaoyuan Chengda Company should pay 65,438+to Jiang Dexin.
2. Be jointly and severally liable for the losses caused by unqualified quality.
Article 67 of the Construction Law stipulates: "The contractor subcontracts the contracted project or subcontracts it in violation of the provisions of this Law. If the contractor commits an illegal act as stipulated in the preceding paragraph, he shall be jointly and severally liable for the losses caused by the subcontracted project or the illegally subcontracted project not meeting the prescribed quality standards. " According to the provisions of this law, the parent company transfers the projects it undertakes to its subsidiaries, and if the subsidiaries are actually responsible for the construction projects with quality problems, the parent company shall be jointly and severally liable for the losses caused by the unqualified project quality.
(2) Administrative responsibility
Regarding the legal liability of subcontracted projects, the second and third paragraphs of Article 65 of the Construction Law stipulate: "Those who undertake projects beyond the qualification level of their own units shall be ordered to stop illegal activities, be fined, and may be ordered to suspend business for rectification and lower their qualification level; If the circumstances are serious, the qualification certificate shall be revoked; If there is illegal income, it shall be confiscated. Without obtaining the qualification certificate to undertake the project, it shall be banned and fined; If there is illegal income, it will be confiscated. " Article 67 stipulates: "If a contractor subcontracts a contracted project or subcontracts it in violation of the provisions of this Law, it shall be ordered to make corrections, confiscate its illegal income, impose a fine, and may be ordered to suspend business for rectification and lower its qualification level; If the circumstances are serious, the qualification certificate shall be revoked. If the contractor commits an illegal act as stipulated in the preceding paragraph, he shall be jointly and severally liable for the losses caused by the subcontracted project or the illegally subcontracted project not meeting the prescribed quality standards. " According to the above laws and regulations, the parent company will hand over all the projects it undertakes to its subsidiaries for implementation. If it is identified as subcontracting, subcontracting will bring huge legal risks to the construction unit, the qualifications of the parent company and subsidiaries may be revoked, the proceeds from undertaking the project may be confiscated, and huge fines may be faced; If there are quality problems in the subcontracted project, the parent company, as a subcontractor, should also be jointly and severally liable for the losses caused by the project quality.
Four. suggestion
First, the parent company can cooperate with its subsidiaries through cooperation, but the parent company should still control and manage the projects undertaken and provide financial and technical support for the project construction;
Second, through subcontracting, some non-principal projects and non-critical work are handed over to subsidiaries for construction, which is within the scope permitted by law.
Third, the parent company will hand over the project to the branch company for implementation by setting up the branch company model. According to the relevant laws and regulations, the branch company does not have independent legal personality and belongs to the same legal entity as the head office. All the projects undertaken by the head office are handed over to the branches for construction, and there is no transfer of contractual rights and obligations, which does not belong to subcontracting or subcontracting.
To sum up, the parent company and its subsidiaries are independent enterprise legal persons and civil liability subjects. Therefore, after the parent company undertakes the project, it is a subcontracting behavior to hand over all the projects to the subsidiaries or subcontract them to the subsidiaries through dismemberment. Both the legislature and the executive hold this view, as do most judges in the court system and most lawyers in the legal profession.