First, clarify the concept of subcontracting and increase the punishment for subcontracting.
Article 29 of the Construction Law stipulates that contractors are prohibited from subcontracting all the construction projects they have contracted to others, and it is forbidden for contractors to dismember all the construction projects they have contracted and subcontract them to others in the name of subcontracting. At the same time, article 6 1 of the law stipulates that: if a contractor subcontracts a contracted project, or subcontracts it in violation of the provisions of this law, it shall be ordered to make corrections, confiscate its illegal income, impose a fine, and may be ordered to suspend business for rectification and lower its qualification level; If the circumstances are serious, the qualification certificate shall be revoked. If the contractor commits an illegal act as stipulated in the preceding paragraph, he shall be jointly and severally liable for the losses caused by the subcontracted project or the illegally subcontracted project not meeting the prescribed quality standards. It should be said that although the current "Building Law" has corresponding provisions on the prohibition of subcontracting and the punishment for subcontracting, the concept of subcontracting is not clear and the punishment is not strong enough.
Some construction enterprises know that subcontracting is illegal and will be punished. In order to pursue profits, they still knowingly commit crimes. In order to avoid legal sanctions, there are few simple, straightforward and blatant open subcontracting in practice, and contractors and subcontractors rack their brains to take various countermeasures to hide their eyes and ears. This is just an example. Party A is the employer, and Party B signed a construction contract with Party A after winning the bid, because Party B promised to pay the construction fee at first, but after obtaining the contracting right, Party B subcontracted the whole project to Party C privately because there was no fund at all. In order to avoid sanctions, the contract signed by Party B and Party C is not a subcontract on the surface. The two parties agreed in the contract that Party C's external identity is that Party B will be responsible for the project department of the project from the date of signing the contract, and all the work such as project construction, management and fund-raising will be undertaken by Party C, and Party B will only be responsible for stamping the official seal several times during the construction process and the completion acceptance. According to the agreement, Party B will receive the so-called management fee of 65,438+05% of the project settlement price. Party B engraves the seal of the project department for Party C, and Party C does not reveal his true identity during the performance of the contract, but appears as the person in charge of Party B's project department. Party A didn't know the truth until Party C independently performed the construction contract, because there was a dispute between Party B and Party C on the distribution of benefits-Party B subcontracted the whole project to Party C without sending managers or laborers or investing a penny, and all the projects were completed by Party C. In this case, after Party A signed the construction contract with Party B, Party B didn't complete any work with its own equipment, technology and labor. In essence, Party B subcontracted all the projects to Party C. Since the concept of subcontracting is not clearly defined in the law, Party B put forward various excuses for his actions in the lawsuit. Party B thinks that Party C is its subordinate project department, and Party C's construction is Party B's own construction, not overall subcontracting. In fact, this excuse can't be established, because Party C is an independent legal person first, not an internal branch of Party B. Although both parties stipulate in the agreement that Party C is a project department under Party B, this is an obvious act of evading the law, and its essence is a disguised subcontracting. This kind of disguised subcontracting behavior is often not recognized as subcontracting by the court, which is not conducive to punishing subcontracting behavior.
In practice, many contractors subcontract all their contracted construction projects to others for profit. Many problems, such as unqualified quality, project delay, wage arrears for migrant workers, are all related to subcontracting or subcontracting. Subcontracting has disturbed the normal order of the construction market and seriously endangered the healthy development of the construction industry. Driven by interests, subcontracting exists in large numbers and is repeatedly prohibited, but according to existing laws and regulations, many subcontracting behaviors cannot be identified. First of all, the legal concept of subcontracting behavior is not clear; Second, many subcontracting behaviors are very hidden or cover up illegal purposes in a legal way; Third, the punishment is not enough.
With the continuous introduction of laws and regulations and the gradual increase of penalties for subcontracting, subcontracting behavior is not as obvious as it was at the beginning, but more and more hidden. In order to effectively prohibit subcontracting and severely punish all kinds of subcontracting, relevant laws and regulations must also be revised accordingly. Subcontracting includes not only those open and illegal subcontracting behaviors at a glance, but also various disguised subcontracting behaviors that evade the law. In view of the diversity and concealment of subcontracting forms in practice, we should further clarify the concept of subcontracting in law and punish and prohibit subcontracting in time.
Second, the law clearly stipulates that contractors are prohibited from paying for the project.
Some contractors have to engage in construction even if they have no money, and contractors have to contribute to the construction in order to contract projects, which is the root of the triangular debt problem in the construction industry. There is a widespread phenomenon of default in project payment in the construction industry, which has a very serious impact on the normal operation of construction enterprises, building materials suppliers and employers. The adverse chain reaction caused by the default of project funds has spread to many industries related to the construction industry: building materials production and sales industry, construction machinery and equipment production and sales industry, construction organization equipment leasing industry, labor units and so on. Criminal cases caused by default in payment of project funds or materials also occur from time to time.
There is no provision in the current legal provisions prohibiting the contractor from paying the project funds. Some experts and scholars suggest that since this phenomenon cannot be banned, it is better to let nature take its course and allow contractors to invest in construction in legal provisions. It is even said that the amount of advance payment can be used as an index to examine the strength of contractors in the future. Under the same circumstances, bidders with advance payment strength can also win the bid first.
The author disagrees with this view for the following reasons: First, the construction unit can only engage in construction if it has money, which is very simple. However, in practice, many construction units have to engage in construction even if they have no money, and rely entirely on contractors to pay for the construction, which is the fundamental reason for the arrears of project funds, wages of migrant workers and many projects. If contractors are allowed to invest in construction, it will encourage the bad atmosphere of "no money to build" and endless troubles will follow. Second, contractors make profits by contracting projects, and building a project requires a lot of investment. If contractors are allowed to invest in the construction, they will have to pay huge materials, equipment and labor costs. Before making money. Where does the contractor's fund come from? Obviously, most of the money can only be solved by defaulting on materials, equipment and labor costs. If the contractor can't get the project payment smoothly after the project is completed, the situation of triangular debt formed at that time will be more serious and even out of control.
The author believes that in order to maintain the order of the construction market and the interests of the public, it is absolutely impossible to legalize the contractor's first construction in order to maintain the order of the construction market and the interests of the public.
In addition, since the hazards of funded construction are so obvious, contractors should be prohibited from funded construction in the Building Law. Practice has proved that administrative regulations alone cannot effectively solve the problem of prohibiting construction. If the revised "Building Law" is still inconclusive about the construction problem, many construction enterprises will think that this is a signal to allow investment in construction, and it will be more difficult to investigate and deal with the investment in construction in the future.
Three, the validity of the contract in black and white should be clear.
Black-and-white contract, also known as yin-yang contract, refers to the so-called supplementary agreement that seriously damages the legitimate rights and interests of the contractor after the two parties sign the standardized construction contract. The standardized construction contract is used by the construction administrative department for filing, that is, the white contract, and the supplementary agreement is the contract that both parties really want to perform, that is, the black contract. The advantage and dominant position of the employer determines that the contractor is only forced to accept the overlord clause that harms his own interests. If the contractor declares in advance that he will not accept these terms, he will never get the right to contract; If the contractor does not accept these terms after obtaining the contract right, it will violate the established "rules of the game" and will eventually be eliminated. Therefore, many contractors have to compromise.
The contract in black and white is an open secret in the construction industry and an unwritten "rule" in the industry. On the surface, this phenomenon should be the embodiment of the true meaning of both sides. It can be said that Zhou Yu played the yellow hat and both sides were willing. But in essence, no contractor will voluntarily give up a contract that can get higher profits and sign another contract with lower profits or even seriously damage his own interests. Only from this perspective, it is against the real meaning of the contractor to sign a black contract. The appearance of black and white contracts, on the one hand, disturbs the normal order of the construction market, on the other hand, it is easy for some people to fish in troubled waters, which is also a hotbed of illegal and criminal activities.
Although Article 3 1 of the Exposure Draft stipulates that "in case of disputes, the contract for filing shall prevail", it does not stipulate the conditions that the contract for filing should have, so the implementation may be out of shape and may not achieve the expected purpose. Therefore, this provision should be further improved.
Fourth, the project completion settlement issues
Article 29 of the Exposure Draft stipulates that after the completion and acceptance of a construction project, the contracting unit shall settle the completion price in accordance with the contract. If there is no agreement or unclear agreement on the completion settlement clause in the project contract, if the two parties fail to negotiate, the contractor may entrust a cost consulting agency for consultation, and the employer shall pay the project price no later than 180 days after the completion acceptance according to the consultation result. Obviously, this provision is conducive to protecting the interests of contractors and effectively controlling the problem of arrears of project funds from a macro perspective. However, there are some problems with this provision. First of all, the project cost is complex, so it is obviously not conducive to protecting the legitimate rights and interests of the employer to authorize the contractor to entrust the cost agency for consultation unilaterally and take the consultation result entrusted by the contractor as the settlement basis.
The phenomenon of dispute settlement is very common in the construction industry, and both parties to the contract will have different opinions on the settlement results from their own interests. Generally speaking, the contractor always hopes that the higher the settlement result, the better, and the more money he earns, so the amount of settlement report submitted by the contractor is generally higher than the actual cost of the project. Employers are just the opposite. There are many reasons why the two parties to the contract have disputes and failed to sign a settlement agreement. It is not excluded that some contractors are deliberately delaying the settlement time in order to achieve the purpose of long-term arrears of project funds. However, it does not rule out that in many cases, the amount of settlement report submitted by the contractor is higher than the actual cost of the project, which is unacceptable to the owner. In addition, it is because the contractor's engineering quality has problems or seriously delayed the construction period.
The project cost problem is very professional and complicated. When assessing the project cost, the cost department should change the information not only according to the quota standard formulated by the cost management department, but also according to a large number of negotiations signed by both parties in the construction process. According to the provisions of the construction contract, but also to consider the provisions of the tender documents; It is necessary to determine the engineering quantity, and at the same time consider the adjustment coefficient of labor cost, the price difference adjustment of commercial concrete and the adjustment of the number of steel bars. Many problems need to be verified repeatedly, and the cost department can't make a consultation conclusion only based on the information provided by the contractor unilaterally. According to Article 29 of the Exposure Draft, it can be understood that the cost consultation institution can only make the consultation result under the condition of unilateral entrustment by the contractor and according to the information provided by the contractor. In this way, the result is likely to be one-sided and unfair. If it is stipulated in law that the employer must accept the unilateral negotiation results of the contractor, it is likely to seriously damage the interests of the employer, which is obviously unfair.
The author believes that the project cost problem is indeed a complex problem, and the solution to this complex problem cannot be oversimplified for the sake of prudence and fairness. In order to make the cost result objective and fair, the employer cannot be deprived of the right to participate in cost appraisal, state facts and reasons and provide evidence materials. In order to reflect the fairness of the law, it should also be clearly stipulated that after accepting the entrustment of the contractor, the cost consulting department should notify the employer to submit the corresponding materials and written opinions on the disputed issues within a reasonable time. If the employer refuses to submit these materials and written opinions after receiving the notice, it may be deemed that the employer has waived its rights.
The author disagrees with the stipulation in Article 29 of the Exposure Draft that the contractor unilaterally entrusts the cost consultation department to conduct cost consultation. The specific reasons are as follows: (1) Some cost disputes are caused by the employer, for example, the employer deliberately delays the settlement time for long-term arrears of project funds. There are also some cost disputes caused by contractors. For example, the engineering quality standard agreed in the contract is excellent, but it only meets the qualified standard. In some cases, the contractor seriously delayed the construction period. Under these circumstances, is it necessary to stipulate that the employer can also unilaterally entrust a cost consulting agency for cost consultation? Generally speaking, the causes of cost disputes are two-sided, and it is obviously unfair to unilaterally stipulate that only the contractor has the right to entrust a cost consulting agency to conduct cost consultation. (2) The cost result entrusted by one party is not legally binding on the other party. After the contractor entrusts a cost consulting agency to make a consultation result, if the employer still refuses to implement it, the result should not have the effect of enforcement, and both parties need to solve the problem through litigation, so the consultation result is meaningless. (3) According to relevant laws, judicial interpretations and judicial practice, in litigation, the consultation conclusion made by unilateral entrustment cannot be used as the basis for determining the amount of project cost, and the court needs to entrust the cost appraisal department to conduct appraisal. This also caused a waste of time and cost appraisal fees.
There is a habit when solving problems, and overcorrection must be overcorrected. Today, the problem of arrears of project funds is more serious, and it is really necessary to intensify efforts to solve this problem. However, we should not ignore one thing and go from one extreme to the other. The law should be fair and protect the legitimate rights and interests of both parties equally. Therefore, the content of Article 29 of the Exposure Draft should be further revised and improved. I hope the landlord will adopt the amendment.