The Main Legal Problems In The Construction Project Department And The Judicial Settlement

The introduction of the construction of project department brought about fundamental changes to the construction industry in China, changed the resource allocation pattern of traditional concepts and traditional production ways and enterprise organizational structure under the planned economy situation. But Chinese law regulation design about the project department had not followed up, which made Chinese construction project department almost stay in a state of barbarism, and reality also led to many disputes, especially related lawsuits have increased considerably in recent years, which brought great challenges to the settlement of judicial practice. However, in reality the project department often conducted foreign activities in their own name but it did not have legal qualifications, what's more, the project department is at the edge of existing legal frame, and related theories are quite limited. It makes the following dispute cases more complex and it's quite difficult for the judicial practice to settle. Therefore, researches about related theories have important meaning to the judicial practice.In order to well analyze the legal problems of the construction project department, the paper made discussion from four aspects:The first part is the basic introduction of the construction project department, mainly makes summary on the related concepts, features, background of the construction project department, laying foundation for the discussion of the paper. There are still some disputes about the concepts of project department in China, the paper will define the project department as the temporary branches making specific construction process management on a certain construction project with the project manager as the head under the name of a company; and combining the reality of project department, the paper has summarized that the project department has three features of being relatively independent, comprehensive and temporary. The second part analyzes the legal problems existing in the construction project department of China. Firstly it's the legality of existence of different modes of the project department, secondly it's the abuse problem of the official seal of the department and problems in the operation of the projects. The construction project department has developed into authorized mode, internal contracting mode, subcontracting mode, separately contracting mode, and affiliated mode and other different types in reality, the following modes are the variants of the first mode. But due to the inadequacy of our legal system design, the regulation of the modes under existing system are in legal vacuum state, so the paper thinks the modes are legal at the moment but this does not represent the admission of legitimacy of related behavior. The abuse of official seal of the project department is closely related to the problems in the operation of projects, so the running problems shall still rely on the abuse of official seals to be analyzed, combining practical cases to make empirical analysis, on the basis the paper believed that the main problems existing in the construction projects are the legal issues for the foreign behavior of the project department.The third part introduces different settlement ways on this type of cases in judicial practice in China towards the main problems existing in the project department: they could be specifically divided into two situations of non-recognition on their legal qualification as civil subject and recognition on their legal qualification as civil subject. The non-recognition on their subject qualification is the mainstream point, but the lawsuits handling is quite tricky; some cases admitted the subject status of project department, but it lacked support of existing legal framework.The fourth part combines above problems and judicial practice, and proposes the solutions. I believe that the main problems existing in project department are the responsibility bearing problems for foreign behavior of project department, so I propose to settle through lawsuit way. Based on this point, the paper made analysis on the advantages and disadvantages of the two points about the lawsuit subject qualification in present theory and practice, and concluded that the subject ualification of project department is more beneficial for the settlement of related disputes. Meanwhile, to connect with the existing system framework, the paper proposed the improving suggestions of related system, which mainly include the system of the application of business license of project department, joint responsibility system between project department and construction enterprises, legal manager system of project department and other systems. The construction of the systems could achieve below effects:(1) clarify the relationship between project department and construction enterprises, normalize the operation of project department;(2) improve the efficiency of legal issues involved in judicial settlement of project department, reduce the pressure of courts;(3) unify the standards of lawsuit cases related to project department in judicial practice, safeguard the judicial authority.