We know to hang leaning is to point to the unit that does not have corresponding construction aptitude or individual, the name that uses the construction company that has corresponding aptitude contracts to do a job project, hand in the corresponding administration fee, behavior that is hanged to rely on an enterprise not to undertake administrative actually to the project that contract to do a job to this enterprise. So hang in the choice what should notice when leaning?
Basis " building law " [1] , " top people court builds case of dispute of engineering construction contract about trying the explanation of applicable law problem " [abbreviation judicatory explains under 2]() , " regulation of construction project quality " [3] " bldg. , hang rely on to attribute action of illicit of law, code, regulations, lean to hanging person and be hanged to rely on an enterprise to sign " cooperative agreement " , " the agreement that distribute a packet " wait for a contract to be maintained commonly to disable. Wrap the construction contract effectiveness that just signs about be being hanged to rely on enterprise and hair, explain according to judicatory [the regulation of 5] , if truly evidence proves those who do not have aptitude is actual,apply a worker to use the name of building construction company that has aptitude and hair bag to just be signed only always contract construction contract, criterion this construction contract also is invalid contract.
One, the legal hazard that is hanged to rely on an enterprise
1, implicative to building the safe quality of the project to assume liability to pay compensation.
It is the loss that causes to building project itself not to accord with quality standard, be hanged to lean enterprise and hang rely on a person to assume; of implicative liability to pay compensation 2 be losing of other life, body, belongings is caused in building engineering construction course, be hanged to lean enterprise and hang rely on a person to assume implicative liability to pay compensation. Once the safe accident such as casualties happens, often give be hanged to rely on an enterprise to bring very severe loss, can bring annihilative consequence completely sometimes, the administration fee of place collection can't offset bears loss possibly far.
2, to building pair of external debt of the project Wu assumes legal responsibility.
Be hanged to rely on an enterprise to regard as contract jurally main body, it is the undertaker of the enjoy person of this creditor's rights that builds a project and debt. If be,purchase a contract with be being hanged to rely on the name of the enterprise to be signed external, often appear in engineering construction hang rely on the dispute over obligation between the 3rd person such as person and supplier, the court will adjudicate be hanged to rely on an enterprise to be assumed pay duty, should be hanged to rely on an enterprise again to when hanging exercise relying on a person to chase after countervail to counterpoise, because assume ability formerly,often also can be deficient in and come to nothing.
3, because controversy of labor, inductrial injury damages economic interest and social image.
Because be in construction process, hang rely on a person to often be met builder of many invite applications for a job, although hang,lean person and be hanged to rely on the salary that conventional builder may make clear in the agreement between the enterprise and everything inductrial injury accident all by hang rely on a person to assume, but because violate labor law law,this agreement is met and be attributed to invalid, be hanged to rely on an enterprise to still be responsibility undertaker finally. Additional, more circumstances are to hang lean any contracts won't be signed at all between person and builder, the worker knows he goes to work in this building site only, immediate invite applications for a job his person is everybody does not know, once do not take salary, search only register the project contractor that put on record to be hanged to rely on an enterprise namely, be hanged to rely on an enterprise to assume all responsibility that agree of unit of choose and employ persons carries. Of the laborer ultra denounce the behavior such as firewood to still can damage the social image that is hanged to rely on an enterprise.
4, administration fee may be confiscated.
Judicatory explains the 4th provision, the actual construction person that does not have aptitude uses the name of building construction company that has aptitude and other to sign the behavior that builds engineering construction contract to disable, people court can capture the illegal gain that party has fetched. Be hanged to rely on an enterprise " illegal income " point to the administration fee that hangs collection relying on a person namely.
5, the likelihood is faced with administration to punish, be reduced even aptitude grade or revoke intelligence letter.
" People's Republic of China builds a way " the 66th regulation: "Building construction company is made over, lend intelligence letter perhaps allows other to contract to do a job with the name of this enterprise with other way of the project, instruct correct, confiscate illegal earning, penalize a fund, can instruct close down to rectify, drop clue of aptitude grade; serious, revoke intelligence letter. " accordingly, be hanged to rely on an enterprise to face the legal risk that administration punishs. If be in construction monitoring is lax, still can initiate lawsuit, the qualification test; when bidding after the influence is additional, if produce accident of great quality safety, hang rely on a person to escape hard of course criminal punish, but be hanged to rely on enterprise aptitude to may be reduced even by revoke, this is disaster for the enterprise to be being hanged to lean.
2, be hanged to rely on hazard of law of law of enterprises be on guard
1, use interior to contract means.
Be hanged to rely on an enterprise to be on guard the basic strategy of legal hazard is not adopted namely hang rely on means to contract construction project, adopt interior to contract however consultative means, legal place allows contract because of interior, will hang rely on what really change is the project to be hanged to rely on an enterprise to have a project oneself.
(1) will be hanged rely on a person to hire rely on company staff to be hanged. Interior contracts of the agreement signing both sides is construction company and company project manager, the project manager ability that has a company only that is to say and enterprise sign interior contract agreement. Accordingly, be hanged to rely on an enterprise to answer in the van and hang rely on a person (need to have project manager aptitude) sign labor contract, build labor relation, buy a society to be sure. If be hanged actually,rely on a person not to have project handler aptitude, had better sign interior to contract with the project manager that has aptitude agreement, hang the security that relies on a person to serve as a contract actually to assume joint liability, the rights and interests that is hanged to rely on an enterprise so can get assuring more.
(2) by be hanged to rely on an enterprise or the specific administrator of the project manager organization, project that send Qian. The personnel such as administrator of the project controller that builds a project, technology chief, business accounting controller, quality, safe administrator all by be hanged to lean the enterprise signs labor to recruit a contract with its, its salary relies on company name to undertake disbursement with hanging.
(3) strengthens the management of project money. Hang in reality rely on a person to often cover project fund with all sorts of means but need not at project itself, give a purpose to run thereby bring very big obstacle. Accordingly, the construction financing of the project should by be hanged to rely on an enterprise to undertake specific managing. Want to have the regulation of an effective on the management that builds project capital, in order to ensure project financing is used completely at item pay.
2, use material to entrust purchase the way that parts packet of photograph union with the service.
This kind of means is to will hang actually rely on construction contract cent to be two following contracts: It is housing materials is entrusted purchase a contract, the material that is hanged to rely on an enterprise to will build a project is entrusted entirely hang rely on a person to purchase; 2 it is to will build a service to divide a bag legally give those who have service aptitude to hang rely on an enterprise to finish. All add up even if should build a project jobs of two contracts award. Because decompose construction job,be material and service two parts, sign a contract respectively, concealment quite, if do not discover two contracts at the same time,existence is hanged rely on a relation won't by debunk. Otherwise, still put in both sides to be maintained lean to hang or the risk that subcontract concerns.
3, the risk in controlling a contract strictly to perform a procedure.
(1) is hanged to rely on an enterprise to want to establish special project management group, control project quality strictly. Can ask to manage than project inspect even stricter, because once quality appears problem, the interest that the loss that is registered to rely on company place to suffer will acquire than place is gotten greatly much, can endanger what be hanged to rely on an enterprise to live even.
(2) is strict financial management. Be about to project management is brought into in be being hanged to rely on the financial management with normal company, be on guard strictly the divert after registering the project fund that relies on a person to take the person that send a package to pay, have carry paragraph abscond even, must supervise hang rely on a person to use money at project construction.
(3) perfects service government. Be hanged to rely on an enterprise to should supervise and urge actively hang the builder that relies on factitious and respective invite applications for a job to buy insurance, assume in order to reduce the risk when inductrial injury accident happens. Perfect the labor contract that hangs the builder that relies on person and its invite applications for a job, after letting labor dispute happen, worker what recover for a short while is rely on a person and hanging is not to be hanged to rely on an enterprise.
4, after producing issue, be hanged to rely on an enterprise ought to whether is careful choice exposed hang rely on a relation.
The effectiveness that always includes a contract depends on win the bid whether had when enterprise and bag of construction project hair just sign total package contract, existed hang rely on a relation. If had been signed when signing total package contract,hang rely on a contract (contract name is varied) or although was not signed written hang rely on a contract but by actual construction person the organization is bidden, actual construction person just used nominal to bid purely the aptitude of the enterprise, bidding is to hang between enterprise and actual construction person rely on a relation, total package contract is invalid, hang rely on a contract if invalid also; is in when signing total package contract, with oneself name is participated in bid, the enterprise that wins the bid later still is done not have reach unanimous opinion with other company or individual or sign a contract, after the agreement wins the bid by this enterprise or individual actual construction, winning the bid is subcontract relation between enterprise and actual construction person, always include a contract effective, subcontract is invalid.
In reality, hang rely on to be limitted very hard actually below circumstance of quite a few with subcontract, a lot of hang leaning appear with subcontract or the form that distribute a packet. A lot of construction companies of current home are adopted hang rely on means to carry on when the project, general metropolis is mixed beforehand before bid hang rely on to just sign an in-house agreement, the agreement is hanged rely on to just be mixed be hanged to rely on an enterprise bidding the respective division of labor in the process, once the project wins the bid, hang rely on to just be in and be hanged to rely on an enterprise to sign a formal contract again, of course, these agreements won't disclose external, everything the hair of be kept inside a drum-be kept in the dark wraps square very difficult know, often be construction contract after issue producing in performing a procedure, hair bag discovers among them mystery just now, can pass front courtyard careful to make a thorough investigation of further in lawsuit or arbitral process only relevant fact.
Accordingly, once just produce issue with hair bag, the choice always wraps a contract to effective or invalid power to make decisions is being hanged to rely on an enterprise actually or use a worker actually, and rather than sends a package square. When because this is become,total package concern produces issue, be hanged to lean enterprise and hang rely on a person to be able to choose to advocate total package contract is invalid effective perhaps. Be like break a contact of square existence of fructification border construction, can advocate always contract the contract is invalid, be being hanged to rely on an enterprise to be able to take out evidence to prove is to hang actually rely on a person to use its aptitude to carry on project (and be hanged to lean enterprise and hang quote of collaboration relying on a person sign between them have hang relying on contract, both sides is to hang relying on a relation is very easy) , because although the contract is invalid, the settle accounts clause that also can agree according to the contract deals with settle accounts formalities, to be being hanged to lean the enterprise is mixed hang rely on a person to do not have legal hazard. But square to sending a package and character, total package contract is invalid, mean hair bag square cannot the responsibility of breach of contract such as the time limit for a project that the clause finds out the total package contract with lawful and active basis to be hanged to rely on an enterprise, quality or safety, because always wrap a contract to disable, clause of break a contact also disables subsequently. Conversely, if send packet of square existence beak a contract, be hanged to lean enterprise and hang rely on a person to want to have claim for compensation to sending packet of person, can continue to concealment both between hang lean or subcontract concerns, advocate total package contract is active.
3, hang the legal hazard that relies on a person
Narrate according to preamble place, once hang,rely on a relation to be able to maintain, mean total package contract, hang lean person and be hanged to rely on the contract that signs between the enterprise to be attributed to invalid. Accordingly, hang the legal hazard that relies on a person to arise from this:
1, project off quality will not obtain project fund.
The relevant provision that explains according to judicatory [6] , if hang classics of project of construction of place relying on a person,check and accept unqualified, mean construction contract purpose to cannot come true, hair bag just does not have any obligation naturally again to be hanged to rely on an enterprise to pay any projects the money, still can recover the project money that has paid before this, and hang lean person and be hanged to rely on an enterprise to all should assume implicative liability to pay compensation to hair Baofang. As to hang lean person and be hanged to rely on an enterprise between, should be opposite according to size of bilateral fault rate the project that has produced throws a loss to assume corresponding proportional responsibility.
2, after total package contract is invalid if involve " black and white contract " lose by " white contract " the basis that holds advantageous cost.
Judicatory explains the 2nd [if construction contract is invalid,7] sets, "The contractor requests what contract agreement pays a project cost to consult, should grant to support " , but did not point out clearly should consult which contract. In reality, hair bag just is signed with the contractor " black and white contract " the situation is very general. Although judicatory explains [8] sets " ought to win the bid with what put on record the basis that the contract regards settle accounts project as money paid for something purchased or received for something sold " , be regarded as to hang a when rely on a person to help straw, but the premise that this explanation is able to become juridical basis is to win the bid apparently the construction contract that put on record is active. Because the construction contract that if win the bid,puts on record is involved " hang lean " the problem is maintained to be by court or arbitral orgnaization invalid, and both sides signed separately again " black contract " , with which contract should regard both sides as the basis of settle accounts after all? Judicatory explains pair of this problems and did not make specific provision. In practice, the contract settle accounts that has a plenty of a basis to be fulfilled actually, have a plenty of a basis to cause a contract size of invalid party fault allocates the price difference between the contract, have a plenty of the aptitude grade according to actual construction person to come cost of settle accounts project, the method is differ, lean to hanging the risk exists for the person.
3, " illegal income " the likelihood is captured.
Judicatory explains the 4th regulation is hanged after relying on a contract to disable, the court can capture the illegal gain that party has fetched. Hang the illegal income that relies on a person to obtain to register the profit of construction net profit that relies on a person to get namely, normally prep above is hanged to rely on the corresponding proportional overhead expenses of enterprise collection. Hang the illegal income that relies on a person to register the profit of construction net profit that relies on a person to get namely, point to namely hang this project that relies on a person to receive whole project money is subtractive hang the real investment that relies on a person (include the administration fee of material, equipment and service expenses expenses, oneself, administration fee that is hanged to rely on enterprise collection, be hanged to rely on company generation to buckle era the taxation of capture) balance. If the court is sentenced,make capture, and register the share of oneself administration fee in relying on a person to be thrown actually often appraisal is disloyal, perhaps register loss of meeting relying on a person.
4, with be hanged to rely on an enterprise relation processing is bad to will be affected hang those who rely on a contract to sign and fulfill.
In practice, the business that registers the name that relies on a person to had looked for a project to rely on an enterprise with be being hanged to bid is not scarce, and be hanged to rely on an enterprise not to give the project after win the bid the thing that registers construction relying on a person also happens from time to tome. In construction process, because a variety of reasons are hanged,rely on a person by the case that is registered to rely on an enterprise to drive construction out of the spot also be some, once produce this kind of situation, hang rely on a person to often be in inferior position.
4, hang those who rely on person law hazard to be on guard
1, firm closes quality, defend lifeline.
Because qualification of acceptance of work is the premise condition that hangs cost of project of view relying on a person, hang so rely on a person to must take project quality problem seriously all the more. If quality is checked and accept unqualified, total package contract and although disable and do not disable because of this contract,hang the clause of money paid for something purchased or received for something sold in relying on a contract, but the provision that explains according to judicatory hangs the legal basis that relied on a person to lose a view to pay a project the money however. If quality is eligible, the base that increased to hang him view relying on a person to combine right advantage is angry, the possibility that obtains corresponding project fund increases greatly.
2, be good at applying judicatory explanation to hold the right to the person that send a package directly.
Hang relying on a person is judicatory explains the 26th actually [9] place says " actual construction person " , "Actual construction person wraps factitious the accused to sue with subcontractor, illegal cent, people court ought to be accepted lawfully " , from this the regulation can see, hang rely on a person to be able to be sued already be hanged to rely on an enterprise to ask for project money, also can sue hair bag to just ask its repay directly, but the person that send a package needs to be in only owe pay a project the money reimbursement responsibility is assumed inside limits. If send packet of person to refus does not pay and be hanged to rely on an enterprise not to grant to cooperate again, be hanged to rely on company stop business, go bankrupt after waiting for a circumstance to appear, hang rely on a person but direct to the person that send a package to lodge a complaint.
3, ground of consider the situation concerns publicly with the subcontract between total contractor.
The if total package contract is active advantageous to actual construction person, contract that signs with the contractor is opposite effectively actual construction person may be adverse, always wrap for instance " white contract " conventional money paid for something purchased or received for something sold reasonable or on the high side, and contractor and hair bag person sign separately " black contract " conventional cost is extremely low (contractor and the contract cost that impose a worker actually to sign extremely inevitable low, bring about actual construction person to cannot gain profit possibly, and actual construction person is on the crucial point such as quality, time limit for a project must accord with hair bag again square requirement) . If underground is illegal relation between its and contractor,use a worker actually, continue to fulfill both and furtive signed contract, in this project the likelihood won't score gain. If apply worker quote actually to prove to the contract is signed after the project wins the bid between its and contractor, both between it is subcontract relation and rather than is hanged rely on a relation, so bilateral and furtive signed contract can break the law because of subcontract and disable. But the disables not to affect total package contract effectiveness of subcontract, and total package contract has already " white contract " have again " black contract " , answer lawfully applicable had put on record " white contract " , person of so actual construction is OK according to " white contract " the agreement obtains advantageous to oneself project cost.
