On The Construction Of China's Engineering General Contracting And Subcontracting In Joint And Several Liability

With the development of specialization trend in construction market, impacts of international capital as well as foreign advanced management techniques and the increasing demands on high level construction techniques,individual engineering general contract enterprise alone is difficult to organize all kinds of resources to complete a large and complicated construction project..In order to fill the gap of resources and techniques for individual enterprise,and enhance their core competitiveness,and diversify and reduce risk in business and operation,it is an inevitable trend that the subcontract companies participate together in the construction project.Once an engineering general contract enterprise assigns parts of obligations to subcontract enterprise,it cannot remove the original contract obligations.In view of the interaction features of construction activities,because parties who have common civil obligations does not fulfill their obligation and lead to quality and security accidences, joint and several liability is obviously a targeted and effective legal means. Therefore,law of PRC like"The Govemment Procurement Law","The Tendering and Bidding Law of PRC"and "The Construction Law of PRC" provision that the general contract and subcontract enterprises shall assume their joint and several liability for owners in the subcontract construction project.However,the regulations for joint and several liability between general and subcontract is far from enough and difficult to adapt current increasingly complex subcontract activities.The reasons are mentioned as followings:first of all,absence of subcontract legislation.Engineering general contractor cannot control the subcontractor activities for large number of owners designated subcontract.It is quite confused to define the responsibilities between the general contractors,subcontractors and owners due to the absence of subcontract legislation.Secondly,the law always emphasis in general contract carry on the liability related to subcontract in reality,whereas considering construction project as a whole,general contractor how to guarantee project to be finished in time in terms of contract is more important than compensation in the dis situation,e.g.delay, disqualification,quit ahead of schedule for subcontractors.Thirdly, difficulties to identify current mixed illegal subcontractors make the general contractors cannot monitor the subconstractor's behaviors and increase the risks have to take.By the way,in order to solve the payment in arrears problem,local governments and departments try to extend the range of the liabilities related to subcontract.Differences standards in law are utilitarian from which the subcontract market doesn't benefit.With the foundation for market economics system and accession to WTO,China construction market has become open gradually.Subcontract system from foreign construction will play an useful role for china's subcontract system.In the dissertation,it is worthy of further discuss on how to integrate our subcontract system with international practices and rules.Based on traditional liabilities in civil law and author's practice,we analyze the legal relationship between general contract and subcontract from the perspective of general contract by way of comparison and analyses,institutions analysis and system analysis.Moreover, "Construction Law","Contract Law" and," tenders and bidding law " and related legal system and legal issues highlighted are taken into account as well. By means of reading the legal terms related to joint liability between general contract and subcontract,we define forms and contents of joint and several liabilities,analyze legal elements for both legal and illegal subcontract,and bear the consequence of the different joint and several liabilities.Considering FIDIC terms of international construction and subcontract rules in developed country,we also comprehensively analyze the legislation and practice related to china's construction engineering. Based upon solving many difficult problems in judicial practice,we finally propose how to perfect legislation related to joint liabilities between general contract and subcontract and to enhance the system construction for subcontract market.