Construction Industry To Borrow Qualification Legal Issues

Borrow the qualification of a main draw on the interpretation of the law applicable on the trial building construction contract dispute cases in China in1998,"Construction Law" and in2004the Supreme People’s Court "(hereinafter referred to as the" interpretation "). that is, to borrow the qualification. Strictly separated from the Supreme People’s Court in the formulation of the judicial interpretation of the subcontract, illegal subcontracting and borrowing qualifications of these three violations, but the nature of the sense of qualified enterprises to borrow some cases qualification is actually a disguised formsubcontract and in disguise illegal subcontracting, the difference lies only in the time before and after borrowing qualifications tend to occur prior to the tender have been agreed and subcontracting and illegal subcontracting occurs in the project after winning. Define borrowing qualification, including a qualified corporate borrower, such borrower can be considered a disguised form of subcontracting and illegal subcontracting. Over the past decade, investment in infrastructure construction of China’s Tenth Five-Year2trillion yuan,"Eleventh Five" building infrastructure investment amounted to3trillion yuan, forming a history of China’s infrastructureclimax at this stage, China’s cities, roads and other infrastructure with each passing day, with the continuous development of the infrastructure, the infrastructure and construction disputes in proportion to the increase in these cases, in particular, to borrow the qualifications behavior the dispute is more complex, the various courts around the trial of as awareness inconsistent results led to the judgment of the case inconsistent, For this reason, the current status quo of the construction market and problems, to borrow the qualification definition and judgment, to borrow the law of qualified parties relations, the current legal issues, governance legal measures four aspects of the analysis several aspects of legal research, borrow qualification acts in order to prevent and put an end to such violations from happening again. The purpose is to purify our construction market environment, to ensure the reasonable market order of the construction market, to ensure the security and social stability of community living.In addition to the introduction and conclusion, is divided into five parts.Part I, the historical development of the borrowing qualifications, the current status quo that borrow qualification defined. History Vocabulary "anchored" to name the one that borrowed qualifications. Borrow the recognition of qualifications behavior.With internal contracting and agency difference analysis to determine the borrowing qualified legal characteristics.the construction industry qualification acts historical reasons and market reasons, legal reasons, as well as punishment to four aspects as the focus must analyze and identify its fundamental purpose is to prevent and control borrowing qualifications behavior.Part Ⅱ, borrow the qualification of the parties to legal relations. Borrowing qualifications behavior is generally related to borrower qualification side, loan qualification side, the construction side as well as borrow qualification square subcontractors Quartet legal subjects. Involve more extensive and disputes more22borrow qualification between legal issues were analyzed. Contract legal effect and validity of the contract identified discount for compensation and punishment, which focuses on the legal relationship between the Employer and loan qualification side and on the identification of the validity of the contract, I think that borrow the qualification of acts signed by the Contracts two cases, the qualified person does not have the appropriate qualifications for the borrowing such contracts invalid, to borrow the qualified person itself with the appropriate organizations such contract is valid but can be revoked, mainly to determine the reason for China’s laws and regulations is an offense to the mandatory requirement. Research understanding of the contract relative in the legal relationship between the Employer and qualified parties to borrow, borrow the qualifications’s compliance with the exception of contracts relative condition while on the right to borrow the qualification side, this article believe that borrowing qualification party to the contract relative exception.Study the validity of the contract between the two sides in the legal relationship between the borrowed qualification side and loan qualification square, the act is invalid, and signed the borrowing agreement is also invalid. Borrow the legal relationship between the qualification side and subcontractors, as the relationship related to legal issues more complex, divided into two parts for analysis, part of the contract signed to borrow the man-made contract relative separation of these contracts the agency by estoppel, agency, valid contract, invalid contract; to lend the human contract signed contract, mainly on the issue of joint and several liability.Borrow more qualified legal relations of all parties involved in the legal rights of claims to analyze.Part III, borrowing qualifications behavior caused by social problems and hot issues. Money payment on the issue, the main research invalid reference contracts for projects under the contract agreed upon reference implementation can withdraw from the contract is the engineering section of the composition, the views of this article is invalid under the contract shall be the qualification of the borrower as a reference, the actual cost accounting in accordance with the qualification of the borrower, such as in the bid discount, should also be in the appropriate discount based on the actual accounting can not give to illegal activities in the accounts can take the machine. Illicitly acquired to deal with this problem, the lender illegally acquired relatively easy to measure, but the borrowing side of the illegal gains is a difficult judicial, this study borrowed the composition of the side of the illegal gains, profits, said on the basis of strengthened, so that the offenders themselves the burden of proof of actual profits, the judiciary only its burden of proof to make the appropriate judgment, failed to burden of proof should be classified as illegal gains.Taxes and how to charge and how to avoid tax evasion in the taxes on the issue briefly. In black and white contract, black contracts before the white contract, black contracts invalid, white contract is null and void in black contract after the white contract, black contracts invalid, white contract effective study. Study of black and white contract to determine the principles of "whether there are substantive changes," in fact some scholars or judicial settlement in accordance with whether there are changes to a single judgment originally scheduled times negative, from the reality of the project, the project Scope of Work quality standards, a basis for settlement, warranty responsibility to determine whether there is substantive change.Part IV, prevention and management of the construction industry borrow qualified countermeasures behavior. Tender strictly, preventing borrowing the qualifications behavior occurred at the tender stage. The recommendations of the tendering process of payment of the bid bond, the whole process of the project manager involved in the requirements of the qualification examination shall comply with the minimum standards of engineering, strengthen supervision and management of the tendering process, supervision of the integrity of the bidding mechanism. Increase the punishment to recommend, our unsatisfactory borrow qualification behavior punishment, the executive arm of miscellaneous implementation of the standards are not uniform. Proposed appropriate to change or reduce the relevant standards of the construction market access system, so that the building market access system for enterprise-based label transition to standards-based practitioners; recommended the establishment of a perfect construction market, and establish a sound corporate credit system, allow enterprises to credit everyone to be investigated, to establish a sound market oversight mechanisms.This paper uses a comparative law analysis, logical analysis and the example of France. Analysis of comparative law, mainly through the different views of scholars and analysis of the consensus of different opinions and different understanding of different views were analyzed and compared to determine their own understanding.Logical analysis to the law of logic and reasoning, logic, the law bars the corresponding reasoning by inference to draw concrete conclusions. To prove the contents of that paper described in the example of France, in some cases, a more detailed description of the views and opinions of the paper.