Research On Legal Issues Of Affiliation In Construction Contract

In recent years,with the acceleration of urbanization and the rigid growth of housing demand,the construction industry has developed vigorously.However,with the alternation of the old and new systems,some individuals or enterprises borrow construction qualification to contract projects in the market,which is usually called"affiliation" in judicial practice.The affiliation behavior violates the compulsory regulations of the construction legislation on the qualifications of constructors,destroys the competition rules of the construction market,concerns the quality of construction projects,affects the interests of other market entities,causes a large number of economic disputes and brings great hidden dangers to social security.This paper expounds the connotation,characteristics and manifestations of affiliation in construction contract of construction project,inspects and summarizes the judicial identification standard of affiliation,analyses the validity of affiliation contract,and deeply explores the civil liability problems caused by affiliation,which will have certain theoretical and practical significance for solving the legal problems related to affiliation in construction field.Based on this,this paper will discuss from four aspects:In the first chapter of this paper,the basic theory of construction contract affiliation is sorted out and explained.It is pointed out that affiliation is the act of contracting projects in the name of construction enterprises with higher qualifications in the name of units or individuals who do not possess construction qualifications or have lower qualifications.In essence,affiliation is a kind of behavior that evades the law and violates the mandatory provisions of qualification management.It usually includes two forms:borrowing qualifications and internal contracting.In addition,by comparing the related concepts of affiliation with agency,subcontracting,internal contracting,joint venture and so on,the affiliation criteria are specified.The second part puts forward the judicial standard of affiliation of construction contract based on the problems of engineering quality and safety hidden danger.From the legislative level,although there are relevant provisions in the judgment on some illegal behaviors issued by the Ministry of construction in 1999 and the measures for identification,investigation and punishment(Trial)issued and implemented by the Ministry of housing and urban rural development in 2014,these Provisions are different in nature,with lower level of effectiveness,principled recognition methods and lack of specific and enforceable standards.As far as the judicial level is concerned,the criteria of affiliation in local courts are not uniform,and there are often different judgments in the same case.Therefore,it is necessary to unify the judicial standard of affiliation of construction contract,in order to accurately determine the validity of affiliation contract,and better solve the related problems such as civil liability caused by affiliation.The third part deeply analyses the validity of contract related to affiliation in construction field.This paper mainly discusses the validity of the "borrowing contract"between the affiliated person and the affiliated unit,and the validity of the construction contract between the contractor and the affiliated unit.Among them,on the basis of confirming the invalidity of the "borrowed contract" between the affiliated person and the affiliated unit,the legal basis behind the invalidity of the contract is emphatically explored.In addition,the validity of the construction contract between the contractor and the affiliated unit should be judged according to different situations,that is,considering whether the contractor knows or should know the affiliated behavior,the validity of the construction contract between the contractor and the affiliated unit can not be directly determined.The fourth part differentiates and analyses the civil liability problems caused by affiliation in construction contracts,mainly including the quality of construction projects,payment of labor remuneration,compensation for personal injury,and the civil liability of affiliated parties and third parties in concluding contracts.Through the analysis of the basis for the formation of the above responsibilities,determine the main body and form of responsibility.