An Identification Of Subjects Of The Construction-related Contracts Under The Construction Affiliation

The construction-related contract disputes caused by Construction Affiliation are becoming more frequent.The theoretical and practical circles have not reached a consensus on the issue of the subject of contractual duty for such disputes.The thesis focuses on defining the nature of the external behavior of the affiliating,and the legitimate legal basis is found to solve the problem of the identification of subjects of such disputes.In addition to the introduction,the content of this thesis consists of five parts:The first part is based on the selected typical cases,and summarizes the judicial practice of the method of determining the responsible party involved in the construction-related contract disputes.There are four main types: one is the affiliated take responsibility;the second is the affiliating take responsibility;the third is the two person bear joint responsibility;the fourth is that the affiliated bears additional responsibility for the part of the affiliating who cannot afford.The thesis believes that the key to solve these disputes is that accurately defining nature of the external behavior of the affiliating.The second part focuses on the analysis of the impact and conversion of Construction Affiliation.According to the Architectural Law and related laws,Construction Affiliation is an illegal act.The act will affect the validity of an affiliation agreement and a construction contract,but not construction-related contract.Meanwhile,Construction Affiliation could be converted into an agent when it qualified.In other words,the affiliating conducts legal acts in form of an agent.The third part defines the nature of the behavior of the person who signs the contract.Because there is no real labor relationship between the affiliating and affiliated,the external behavior of the affiliated is not a duty.When the affiliated conducts external exchange transactions using an authorization,the act is an agent.Therefore,the act of signing the contract by the affiliated is not the name-borrowing act.Under the premise of insisting on the independence of the authorization behavior,the act of a contractor is an agent that could be analyzed by concrete case.The fourth part analyzes the relationship between an affiliation agreement and the effectiveness of an act of granting the right of agency.That an act of the affiliated deliver an authorization,official seal and other documents and seals to the affiliating is an act of granting the right of agency.The basic relationship between the affiliated and affiliating is invalid because of violation of the mandatory provisions of laws and administrative regulations.Therefore,as for the dispute,whether the effectiveness of an act of granting of agency is affected by it or not,there are two viewpoints.The thesis agrees on the theory of authorization without cause.The reason is that this theory integrates agency,and effectively protects the transaction safety.The fifth part takes the agency system as the legal basis and focuses on determining the responsible subject of construction-related contracts entered into by the affiliated.When the authorization is unclear,it needs explanation which relies on the burden of proof of the parties.When it could be proved as a valid agent by the third one,the affiliating and affiliated should take joint responsibility because of the mutual intent.If not,it should take apparent agency into consideration.In the determining of whether one case constitutes apparent agency or not,the interests of both parties measured by the principle of risk allocation and a comprehensive investigation of cognitive ability of the third party should be take account.If the third party could prove that she is of goodwill,the affiliating should take responsibility.If not,the affiliated should take responsibility.