The Reseach Of Regulation On The Illegal Subcontracting And Subletting Of Construction Project

In accordance with the qualification admittance system for construction market established in the country’s Construction Law, enterprises engaging in construction business shall be leveled first according to their registered capital, technologies, equipment and performances on finished construction projects before carrying out any building activity within their capabilities. Meanwhile, specialized technical personnel engaging in construction activities shall also attain the relevant certificates of professional qualification and conduct building activities within the scope of their certificates. Besides, the out-contracting units shall only contract out the project to those contracting units with appropriate qualifications. However, the normal orders of the construction market have been disrupted severely and cases of illegal subcontracting and illegal subletting emerge one after another owing to the extensive management mode in the field, some profit-driven factors and a planned economic management mode on the system of financing and investment and the system of out-contracting and contracting. Consequently, the quality of some projects remains defective and problems such as defaulting peasant-workers’ wages and serious latent danger of safety accidents happen from time to time. Though the country’s Construction Law has explicitly prohibited any construction enterprise form lending its certificate of qualification to others or allowing others to contract projects in its name and has strictly banned illegal subcontracting and illegal subletting, as a specific law focusing on quality and safety management, these prohibitive norms actually turn to be principle provisions when putting into practice. To some degree, some of these norms even exist in name only considering the difficulties in investigation and punishment, limited law enforcement efforts and less optimistic expectations on consequences and punishments of illegal behaviors. In order to unify justice mode and preserve the economic orders in the construction market, the Supreme People’s Count has enacted an Applicable Legal Matter Explanation on Construction Contract Dispute Case Inquisition, which provides legal standards and modes for the courts when dealing with illegal subcontracting and illegal subletting. Though declared null and void, related contracts would also be referred as valid one to settle accounts if a project is finished and qualified. Referring to a legally invalid contract has undeniably protected the survival interests of the actual constructor, but it also indulges the phenomena of illegal subcontracting and subletting on constructional engineering.By clarifying the basic concepts of illegal subcontracting, illegal subletting, qualification-lending, affiliating operation and their manifestations, this thesis has introduced some legal provisions of the country’s Construction Law against contractors, illegal subcontracting and illegal subletting. Together with some collected real-life cases, it also makes empirical analyses on the types of disputes on illegal subcontracting and subletting as well as their actual harm, legal consequences and relief measures. As the conclusion, it proposes that there still exist some legal loopholes in the Construction Law especially on the contractor of certain construction projects and the legislative regulations on the transactions between out-contracting and contracting. Driven by profits, the participation units indulge the phenomena of qualification-lending, illegal subcontracting and illegal subletting, which eventually result in the rampancy of these illegal behaviors. As a systematic project, governances toward these phenomena require great efforts:On one hand, beliefs on laws and regulations shall be gradually established in those competent administrative department for construction, participation units and their staffs. By baring strong sense of regulations, they would obey related laws and regulations and firmly enforce the qualification admittance system for construction market established in the country’s Construction Law as well as conduct stringent management towards the participation units and make the out-contracting and contracting activities well-organized in accordance with legal procedures and patterns. Meanwhile, the illegal phenomena aforementioned should also be effectively prevented so as to ensure the quality and safety of a project, the legitimate interests of peasant-workers and a stable economic order.On the other hand, the legislation on construction should be improved centering on the country’s Construction Law. Namely, in order to make a comparatively detailed and reasonable regulation, the very law aforementioned shall be modified and related administrative laws and regulations and judicial explanations shall also be enacted so as to detail the application of the Contract Law in the out-contracting and contracting activities of building engineering as well as the principle provisions of related contractors and transactions when putting into practice. By focusing on qualification management, judicial regulations shall be made with emphasis on the application of laws and the contractors’ deeper understanding of laws and regulations. Meanwhile, only if the normative content of the building legislation be improved with its controllability and practice being strengthened could a real sense of legal regulation towards the contractors and transactions aforementioned be achieved via dual stipulations by increasing the trade subject’s legal responsibility and combining the credit system’s remodeling of out-contracting and contracting mechanism.