Research On Subcontract Effectiveness Of General Contracting Mode

With the impact of the reform of "control and service",the state promotes the general project contracting management mode,but there are few explicit provisions on general project contracting.Most of the current legal documents are applicable to the general construction contracting mode,which makes the validity judgment of subcontract more complicated.Through analysis,this thesis finds that there are some problems in the legal system of the effectiveness of subcontract under the general contracting mode.There is an over-interpretation of "mandatory provisions" in the invalidity of subcontract,and there are also drawbacks in the treatment of the invalidity of subcontract by referring to the contract discount compensation after acceptance.The author studies the civil legal consequences of illegal subcontracting under the general contracting mode from the perspective of comparative law,and concludes that illegal subcontracting does not necessarily lead to the civil legal consequences of invalid subcontracting.Without affecting the consequences of public law liability,the author mitigates the private legal consequences of illegal subcontracting,recognizes the effectiveness of subcontracting,and gives the non-fault party such as terminating the illegal subcontracting contract or requiring to bear liquidated damages The free choice of right remedies such as compensation for losses,rather than blindly negating the validity of the contract,is more beneficial to protect the interests of the innocent party,and the recognition of the validity of the illegal subcontract will not be conducive to the downward recovery of the liability chain even though the illegal subcontract acts.On this basis,the effectiveness of subcontract under four types of illegal subcontract is discussed respectively: First,illegal subcontracting with unqualified qualifications should not be recognized as invalid.Administrative intervention in market economy and free competition should be minimized,use the qualification specification as a regulatory mandatory specification to recognize its contract effectiveness;Secondly,subcontracting without the consent of the Employer shall not lead to the invalidity of the contract.The law only stipulates subcontracting with the owner’s consent is allowed,but does not restrict the owner’s consent right,which may lead to abuse of the consent right.Therefore,the subcontracting part that requires the owner’s consent should be agreed in advance,and the time limit of the owner’s consent should be limited;Third,the general contractor with single qualification subcontracts its unqualified subjects to the units with appropriate qualifications with the consent of the construction unit,or the general contractor with double qualifications subcontracts the design or construction business to the units with corresponding qualifications with the consent of the construction unit,the subcontract shall be legal and effective;Fourth,When the "single qualification" enterprise is the general contractor of the project,it will have one more level than the traditional general contractor of the construction.The longest chain can be "the construction unit-the general contractor of the project-the general contractor of the construction-the professional contractor-the labor subcontracting".Therefore,the "second time" can no longer be used as the judgment standard for illegal subcontracting.