In the field of engineering construction, it is not uncommon that the person who undertakes the project is inconsistent with the person who actually constructs it, which leads to frequent disputes over affiliation and subcontracting.
In civil trial, in order to determine the civil rights and obligations of the subject, we should clearly distinguish between affiliation and subcontracting as far as possible, and roughly judge whether the actual construction party (affiliated party) participates in bidding, contract conclusion and other activities. When affiliated, the affiliated person (actual constructor) borrows the qualifications of other enterprises to undertake projects, usually participates in bidding, contract conclusion and other affairs, and even appears directly in the name of the affiliated person. Subcontracting refers to the fact that after undertaking the project, the construction enterprise contracts the project to the actual construction party, who generally does not participate in bidding activities and enter into contracts.
From the criminal field, whether subcontracting or subcontracting, its essence is roughly the same, and the contractor "secretly" hands over the project he undertakes to others for construction (therefore, the distinction between subcontracting and subcontracting in criminal cases is extremely limited). What has become a problem in criminal law is that after being affiliated with a large construction company or accepting subcontracted projects due to insufficient qualifications, due to the large amount of funds to be spent from the nominal general contractor, in the process of cooperation with the general contractor, the actual construction party sometimes has disputes in interest distribution, fund settlement, construction responsibility sharing and so on. However, if the actual construction party obtains relevant funds from the general contractor or uses the project funds irregularly, it may be charged with the crime of duty embezzlement or misappropriation of funds. Therefore, it is of practical significance to clarify the boundary between civil disputes and property crimes in the process of project affiliation and subcontracting.
In the case of 1, the actor A signed a project target management responsibility letter with the engineering company A, stipulating that the engineering company A would hand over its winning project to Party A for specific construction, and Party A would borrow the construction qualification of the engineering company A to undertake the project. As the general contractor of the project, Engineering Company A collects the project management fee at 2% of the project cost, and other related expenses are borne by Party A. Article 4 "Financial Management Requirements" of the Responsibility Letter for Project Management by Objectives further stipulates that after receiving the payment from the owner, Engineering Company A will deduct the management fee according to the provisions of the Responsibility Letter for Project Management by Objectives, and after withholding taxes and various withholding funds, transfer the balance to the account designated by Party A. In the specific construction process, In the late stage of project implementation, an engineering company had a dispute with A, and A was charged with embezzlement.
Example 2, the actor B subcontracted a construction project to B Construction Group, and the internal contracting agreement concluded by the two parties stipulated that B Construction Group and B formed a labor relationship and charged a management fee of 4% of the total project cost; Before the completion of the project, all the funds and materials provided by the project owner, all the property and materials of the project belong to B Construction Group, and Party B has no right to distribute them. In the actual construction process of the project, the latter B took the 3 million yuan paid by the construction party to the construction team B as his own. B was accused of misappropriating funds.
The problems raised in the above cases are as follows: first, whether the actual construction personnel in affiliated projects and subcontracted projects can be identified as the staff of general contracting units such as A Engineering Company and B Construction Group; The second is whether it can be determined that the actual construction party's false report and fraudulent behavior has caused property losses to the general contractor. If the above two points can be affirmed, Party A and Party B, as the actual construction parties, can establish the crime of duty embezzlement or misappropriation of funds.
However, combined with the current law and relevant jurisprudence, we should draw a negative conclusion on these two points. On the one hand, the subject of the crime of duty embezzlement or misappropriation of funds is "the staff of companies, enterprises or other units". A and B obviously do not meet the main elements of the corresponding property crime.