The Regulation Of Shfiting Of Comtract In Construction

As the continued developedment of China's economic, the rapid development of the construction industry has become an important force driving economic growth.The competition of Construction industry becomes more and more intense in the market.The Construction enterprises are involved with legal risks increasingly in the constructing,supervising and other aspects of the construction.The appearance of the "shifting of contract", "subordinating", "illegal subcontracting,",and so on in the real estate,road and bridge constructing have eriously damaged the normal order of construction market in China.Although "Construction Law", "Contract Law" and "Construction Quality Management Ordinance" and other laws and regulations for the construction project has a corresponding provision of shifting of contract,but in general they all lack of the catholic guidance value in the judicial practice.The parties, lawyers, and judges have different perceptions and understanding for the concept of shifting of contract.In this paper, the author analyzes the deficiency of the current legislation for the regulation of shifting of contract by the common cases in the constructuction market,and provide appropriate legislation mmeasures,as well as possible proposal.This article is divided into six parts, the first part defined the concept of construction and construction contracts,and their legal characteristics clearly.In particular the construction contract, which is involved with more legal issues ,is the main basis for studying the rights and obilgations of the parties in constructing of the construction contract.The second part, the author analyzes the concept and legal characteristics of"shifting of contract"Comprehensively,and reveals the difference and linkages among the"shift of contract","subcontracting"and"subordinating"by contrasting their congenial concepts.because these concepts linked to each other, the hidden shifting of contract lies in the cloak of"legal subcontracting", or evade the law investigation by subordinating. Therefore it is necessary to recognize the existence of the legal subcontracr in construction market, and search the way to solute the shifting of contract byby the comparison those concepts.The third part, the author believe, soluting the behavior of shifting of contract should find the source from the construction market. So the author research the current construction market and the causes of shifting of contract,and by analyzing the serious social harm of shifting of contract,oppsed to an academic view which has the open attitude to the shfiting of contract.The fourth part, the provisions of the shifting of contract could be various. there are different ranks, different departments legislation identified in the shifting of contract.The author believe that we can find the different means of regulation to the shifting of contract through a descriptive analysis of existing legislationPart V, the reason of shifting of constract abound , in addition to the actual objective environment, and was also related to the technical deficiencies, the author analyzes two angles of deficiency of current legislation, one is act for the identification of the shifting of contract, The other is for the treatment of it.Part VI, as the regulations for the shifting of contract, the author analyzes particularly the default responsibility to the employer, precontractual responsibility to the third of the illegal contractor,also the problem of joint responsibility when the third request the construction cost.in order to completely solute the deficiency of regulation for shifting of contract,the author promotes the public-private measures.