1, law
law of contract
Article 52 A contract is invalid under any of the following circumstances:
(5) Violating the mandatory provisions of laws and administrative regulations.
Paragraph 3 of Article 272: A contractor is prohibited from subcontracting a project to a unit that does not have the corresponding qualifications. Subcontractors are prohibited from subcontracting contracted projects. The construction of the main structure of the building project must be completed by the contractor himself.
construction law
Article 28 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.
Twenty-ninth general contracting units of construction projects may contract some contracted projects to subcontractors with corresponding qualifications; Except for subcontracting agreed in the general contract, it must be approved by the construction unit. In the case of general contracting, the construction of the main structure of the construction project must be completed by the general contracting unit itself.
It is forbidden for the general contractor to subcontract the project to units that do not have the corresponding qualifications. Subcontractors are prohibited from subcontracting contracted projects.
Article 67 A contractor who subcontracts his contracted projects or subcontracts them in violation of the provisions of this Law shall be ordered to make corrections, confiscate his illegal income, impose a fine, and may be ordered to suspend business for rectification and lower his 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.
Bidding method
Article 48? The winning bidder shall fulfill its obligations in accordance with the contract 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.
The winning bidder may, according to the contract or with the consent of the tenderer, subcontract part of the non-major and non-critical work of the winning project to others for completion. The person who accepts subcontracting shall have corresponding qualifications and shall not subcontract again.
The winning bidder shall be responsible to the tenderer for the subcontracted project, and the subcontractor shall be jointly and severally liable for the subcontracted project.
Article 58? If the winning bidder transfers the winning project to others, dismember the winning project and transfer it to others respectively, or subcontract part of the main body and key work of the winning project to others in violation of the provisions of this Law, or the subcontractor subcontracts it again, the transfer and subcontracting shall be invalid, and a fine of not less than five thousandths but not more than ten thousandths of the amount of the transferred and subcontracted project shall be imposed; Illegal income, confiscate the illegal income; Can be ordered to suspend business for rectification; If the circumstances are serious, the business license shall be revoked by the administrative department for industry and commerce.
2. Regulations
Regulations on quality management of construction projects
Article 25? The construction unit shall obtain the qualification certificate of the corresponding level according to law and undertake the project within the scope permitted by its qualification level. ?
Construction units are prohibited from exceeding the business scope permitted by their qualification grades or contracting projects in the name of other construction units. Construction units are prohibited from allowing other units or individuals to undertake projects in their own names. ?
The construction unit shall not subcontract or illegally subcontract the project.
Article 27? If the general contractor subcontracts the construction project to other units according to law, the subcontracting unit shall bear joint and several liability for the quality of the subcontracted project in accordance with the contract.
Article 62? In violation of the provisions of these regulations, if the contractor subcontracts or illegally subcontracts the contracted project, it shall be ordered to make corrections and confiscate the illegal income; Impose a fine of more than 0.5% 1% of the project contract price on the construction unit, and may order it to suspend business for rectification and lower its qualification level; If the circumstances are serious, the qualification certificate shall be revoked; If there is illegal income, it shall be confiscated.
3. Departmental regulations
Interim Measures for the Administration of Wage Payment for Migrant Workers in the Construction Field
Article 7? Enterprises should pay wages directly to migrant workers themselves, and it is strictly forbidden to pay them to "contractors" or other organizations and individuals who do not have the qualifications of employment subjects.
Article 10? If the owner or general contracting enterprise fails to settle the project payment with the construction project contracting enterprise according to the contract, resulting in the arrears of wages of migrant workers by the construction project contracting enterprise, the owner or general contracting enterprise shall advance the wages owed to migrant workers in advance, and the amount of wages paid in advance shall be limited to the owed project payment.
Article 12? The general contracting enterprise shall not contract or subcontract the project in violation of regulations to organizations and individuals that do not have the qualification of employment subject, otherwise it shall be jointly and severally liable for paying off the arrears of wages.
Notice on effectively solving the wage problem of migrant workers in construction enterprises
Article 5? Vigorously develop construction labor subcontracting enterprises and standardize employment behavior.
It is necessary to standardize the employment behavior in the construction industry and prohibit the illegal employment behavior of individuals, organizations and "contractors" without employment qualifications.
Measures for the administration of highway construction market
Article 38? The construction unit may subcontract non-critical projects or sub-projects suitable for the construction of professional teams to units with corresponding qualifications, and shall be jointly and severally liable for the subcontracted projects. The scope of projects that are allowed to be subcontracted shall be stipulated in the tender documents, and the subcontracted projects shall not exceed 30% of the total engineering quantity. Subcontracting works shall not be subcontracted again, and subcontracting is strictly prohibited.
No unit or individual may designate subcontracting, purchasing or splitting projects in violation of regulations.
Article 39? The construction unit can directly recruit migrant workers or contract the labor operation to a labor subcontracting unit with labor subcontracting qualification. If the construction unit recruits migrant workers, it shall sign a labor contract according to law and report the labor contract to the project supervision engineer and the project legal person for the record.
Construction units and labor subcontractors shall pay labor wages on time in accordance with the contract, implement various labor protection measures, and ensure the safety of migrant workers.
The labor subcontracting unit shall accept the management of the construction unit and carry out labor operations in accordance with the requirements of technical specifications. Labor subcontracting units shall not subcontract their subcontracted labor operations again.
Measures for the administration of subcontracting of housing construction and municipal infrastructure projects
Article 8 The contractor of a subcontracted project must have corresponding qualifications and undertake business within the scope permitted by his qualification grade. Individuals are strictly prohibited from undertaking subcontracting business.
Article 13 It is forbidden to subcontract contracted projects. Failure to perform the contract, contracting out all the contracted projects to others, or contracting out all the contracted projects to others in the name of subcontracting, belongs to subcontracting.
In violation of the provisions of Article 11 of these measures, if the employer of the subcontracted project subcontracts the project, it will be deemed as subcontracting if it fails to set up the project management organization and send corresponding personnel to the construction site and fails to organize and manage the project construction activities.
Article 14 Illegal subcontracting of contracted projects is prohibited. The following acts are illegal subcontracting:
(1) The employer of the subcontracted project subcontracts the professional project or labor service to a subcontractor who does not have the corresponding qualifications;
(two) there is no agreement in the general construction contract, and without the approval of the construction unit, the employer subcontracts some professional projects in the contracted projects to others.
4. Judicial interpretation
The Supreme People's Court's explanation on the application of law in the trial of construction contract disputes.
Rule number one The construction contract of a construction project shall be based on the following circumstances
The provisions of Item (5) of Article 52 of this Law shall be deemed invalid:
1. The contractor fails to obtain the qualification of a construction enterprise or exceeds the qualification level;
Two, the actual construction is not qualified to borrow the name of a qualified construction enterprise;
Article 4? 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 people's court may confiscate the illegal income of the parties concerned in accordance with the provisions of Article 134 of the General Principles of the Civil Law.
Article 7 A labor subcontracting contract signed between a contractor with legal labor operation qualification and the general contractor or subcontractor shall not be supported if the parties request to confirm that the subcontracted construction project is invalid on the grounds that it violates the legal provisions.
The Supreme People's Court's Interpretation of Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases
Paragraph 2 of Article 1 1: If an employee suffers personal injury due to a production safety accident in the course of his/her business activities, the employing unit or the subcontracting unit knows or should know that the employing unit that accepts the contracted or subcontracted business does not have the corresponding qualifications or conditions for production safety, and shall be jointly and severally liable for compensation with the employing unit.
Labor subcontracting has the following forms
The first form
Bring your own labor contract. Refers to the formal employees in the enterprise who have passed the training and examination of the enterprise and become the foreman. In principle, the laborers shall be recruited by the foreman, and they shall take care of themselves such as accommodation and transportation. The personnel are managed by the enterprise in a unified way. Wages are paid by the foreman under the supervision of the enterprise or the payroll is compiled by the foreman and paid directly by the enterprise.
In this form, the company entrusts some of the projects undertaken by the company to its employees in the form of signing contracts, and the contractor hires people. Formally, the contractor is responsible for the construction and management of the project, and the remuneration of the workers is also paid by the contractor, which seems to have formed the labor relationship between the contractor and the workers. But the point is that the contractor is an employee of the company, performs the contract in the name of the company, and has a legal relationship with others, so the contract belongs to an internal contract. Contract management is the change of enterprise internal management mode, and does not cause the change of construction contract performance subject. The contractor's employment of workers should be regarded as the company's behavior, and there is a labor relationship between the hired workers and the company, but there is no labor relationship with the contractor.
The second form
Sporadic labor contract. Refers to the temporary employment of enterprises, often workers recruited temporarily for a project.
In this form, the legal status of the contractor should not be equal to that of the subcontractor, but should be defined as labor relations or labour relation, that is, the status of workers or services, according to whether the labor service operators have employment qualifications. The reason is that the contractor is only engaged in labor cost contracting, generally engaged in a single type of work in the project, and his personal income is directly linked to the construction benefit, but he does not independently manage the project construction, nor does he take lifelong responsibility for the project quality, but only bears the "qualified" quality responsibility to the employer. Temporary workers during the period when the contractor provides services are not responsible for injury accidents and quality and safety problems during the construction.
The third form
Organized labor subcontracting. Refers to contracting labor services in the form of enterprises from construction general contracting enterprises or professional contracting enterprises.
In this form, it goes without saying that the labor contract is subcontracting in nature, and the position of the contractor is equal to that of the subcontractor.
It can be seen that the first and second forms of construction services can be said to be temporary employment to a certain extent, and the meaning of labor subcontracting can only include the third organized labor subcontracting, which cannot be equated with the other two situations.
Reference from the legal consultation platform "Legal Express" Shijiazhuang lawyer www.lawtime.cn/sjz..