Impact On The Validity Of The Constraction Contract By Borrowing Qualification Behavior

In the existing legal system and judicial practice, the construction project contracts are of course recognized as invalid contract by the violation of the construction qualification management behavior. In violation of the construction qualification management behavior, borrowing qualification behavior is the most common in the construction project contract dispute cases, with a significant high incidence. According to the legislative intent of the contract law of our country and the present situation of the construction market, it can not achieve the best protection of the interests of the parties that we usually decide that the construction project contract with borrowing qualification behavior is invalid. Instead, according to the existing judicial interpretation, the construction project contract is invalid if the contractor do not obtain construction qualification, beyond construction qualification or borrow qualification, but the completion acceptance is qualified, the contractor can request to pay the project price referencing the contract agreed. Obviously, the preceding and the latter clause of the regulations exist logical contradiction, at the same time, if we find measure flaw of the construction project after the completion of acceptance, the owners wili not be able to claim to the contractor for defects of right according to the terms of the warranty of the contract and ask it to bear the liability for warranty against defects of quality. In this way, the persons who borrowing qualification don't assume more responsibility because they borrow qualifications, but reduce their own contractual obligations and responsibilities, which damages the interests of the good owners. Therefore, it is necessary to reflect on the validity of the construction project contract that signed by borrowing qualification behavior. After all, borrowing qualification behavior is a violation of the law on administrative licensing management order in itself, which should be carried on the administrative punishment. But we should not negative the contract behavior and effectiveness between the parties in private law, when necessary, this kind of construction project contract should be recognized as valid.