First of all, it is an important topic that many construction enterprises can't avoid to clarify the qualification relationship among the head office, branches and subsidiaries and effectively avoid the legal risks of the parent company's winning subsidiary and the head office's winning subsidiary.
1. Legal risk of the project (called qualified * * *) built by the winning subsidiary of the parent company after the camp reform.
(1) All the construction projects won by the parent company are handed over to the subsidiaries for construction. In essence, the parent company subcontracted the construction to the subsidiary company, which led to illegal subcontracting.
Subcontracting refers to the behavior that the contractor transfers the contracted construction task to a third party after contracting the project, and the transferor withdraws from the contractual relationship and the transferee becomes the other party to the contract.
According to Articles 12 and 13 of the Measures for the Administration of Subcontracting of Building Construction and Municipal Infrastructure Projects (OrderNo. 124 of the Ministry of Construction) and Articles 24, 28 and 29 of the Building Law of People's Republic of China (PRC), subcontracting of contracted projects is prohibited. 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.
Subcontracting Project After subcontracting the project, the employer fails to set up a project management organization and send corresponding personnel to the construction site, and fails to organize and manage the construction activities of the project, which is regarded as subcontracting (illegal).
According to this regulation, there are two common subcontracting behaviors:
One is that the contractor subcontracts all the contracted construction projects to others; The other is that the contractor dismembers all the contracted construction projects and subcontracts them to others in the name of subcontracting, that is, subcontracting in disguise.
But no matter what form it takes, it is not allowed by law. Once it is found out, it will bear certain legal responsibilities. According to Article 4 of the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Construction Contract Disputes (Fa Shi [2004]14), the contractor's illegal subcontracting of construction projects is invalid. The people's court may confiscate the illegal income of the parties in accordance with the provisions of Article 134 of the General Principles of the Civil Law.
(2) The parent company subcontracts the main body of the winning construction project to a subsidiary company for construction, or the subcontracting amount in the subcontracting contract signed between the parent company and the subsidiary company exceeds 30% of the total amount of the winning contract, resulting in illegal subcontracting.
Subcontracting refers to the act that the general contractor contracts a part of the contracted construction project to a contractor with corresponding qualifications according to law. The general contractor does not withdraw from the contractual relationship, and he and the third party shall be jointly and severally liable to the employer for the work results completed by the third party.
According to the Building Law of People's Republic of China (PRC) (Order No.46 of the President of the People's Republic of China), Article 14 of the Measures for the Administration of Subcontracting of Housing Construction and Municipal Infrastructure Projects (Order No.24 of the Ministry of Construction) and Article 78 of the Regulations on Quality Management of Construction Projects (Order No.279 of the State Council), illegal subcontracting refers to the following acts:
① The general contractor subcontracts the construction project to units that do not have corresponding qualifications;
(two) there is no agreement in the general contract for construction projects, and the contractor entrusts some of the contracted construction projects to other units without the consent of the construction unit;
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.
Illegal subcontracting will face certain legal risks. According to Article 4 of the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Construction Contract Disputes (Fa Shi [2004]14), the contractor's illegal subcontracting of construction projects is invalid. The people's court may confiscate the illegal income of the parties in accordance with the provisions of Article 134 of the General Principles of the Civil Law.
2. Legal risks of the head office winning the bid for the construction (independent financial accounting) project of the branch company: it is illegal for the branch company without construction qualification to undertake the engineering business.
According to the Company Law of People's Republic of China (PRC), the head office is an independent legal person, which can operate and sign contracts with foreign countries and has the ability to bear civil liabilities independently. However, the branch company does not have the legal person qualification and the ability to bear civil liability independently. In the field of construction, the branch company is not a legal person, so it has no construction qualification, while the head office is an independent legal person with construction qualification. The third paragraph of Article 29 of the Construction Law of People's Republic of China (PRC) (Decree No.46 of the President of the People's Republic of China) stipulates: "It is illegal for a general contractor to subcontract a construction project to a unit that does not have the corresponding qualifications."
Article 4 of the Administrative Measures for Identification and Investigation of Illegal Subcontracting of Construction Projects (Trial) (Jianshi [2014]18No.) stipulates: "Illegal contracting refers to the behavior that the construction unit contracts the project to units or individuals who do not have the corresponding qualifications".
At the same time, Item (2) of Article 9 of Jianshi [20 14] 165438 stipulates: "It is illegal for the construction unit to subcontract the project to a unit that does not have the corresponding qualification or safety production license.
Based on the above policies and regulations, it is obvious that branches without construction qualification cannot participate in project bidding and sign project contracts with the employer, otherwise it will be considered illegal; In addition, after the head office won the bid and signed the general contract with the owner, the head office signed a subcontract with the branch company, which also belongs to illegal subcontracting because the branch company has no construction qualification.
According to Article 4 of the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Construction Contract Disputes (Fa Shi [2004]14), the contractor's illegal subcontracting or illegal subcontracting of construction projects is invalid. The people's court may confiscate the illegal income of the parties in accordance with the provisions of Article 134 of the General Principles of the Civil Law.
To sum it up
The branch company does not have independent legal person qualification, and the ultimate legal responsibility of the branch company shall be borne by the head office, so it cannot apply for qualification. The head office may authorize the branch company to perform the agreed matters in the professional subcontract signed with the general contractor on behalf of the head office and provide construction services for the owner.
A subsidiary is an independent legal person and can bear its own legal responsibilities. Therefore, if the construction scale exceeds a certain amount of work, the subsidiary can apply for qualification to undertake construction subcontracting after the parent company wins the bid, so as to avoid the adverse consequences caused by illegal subcontracting.