Research On Legal Issues Of Illegal Transfer Of Contracts And Subcontracting In Construction Contract

Under the social and economic development,our state has vigorously supported infrastructure construction.In recent years,the number of construction projects has expanded expansively,and its position as an important pillar industry in the national economy has become more and more obvious.With the rapid development of China’s construction industry,as a new growth point of China’s national economic development,it has effectively promoted the development of related industries,and the expansion of the construction industry market demand has attracted a large number of construction industry practitioners.Due to the lack of a complete and effective control mechanism in China,the problems in the construction contract of construction projects are frequent,especially in the case of illegal transfer of contracts and subcontracting.In the judicial practice,the construction project illegal transfer of contracts and subcontracting result in the inconsistency between the nominal construction unit and the actual constructor.It blurs the original clear contractual relationship and complicates it,which easily leads to conflicts of interest between the contractors,the nominal constructor and the actual constructor.Coupled with the current ambiguity of judicial standards,it also brings certain complexity to the judicial trial work,which is not conducive to protecting the rights and interests of the parties,but also is not conducive to curbing illegal transfer of contracts and subcontracting behavior and disrupting the construction market order.Even social problems such as petitions have been triggered,which seriously affects the credibility of the judiciary.Taking the case of He Guojun and Panjin Company,Zheng Xuanhua and Li Bin in the construction contract dispute as an example,this paper analyzes the legal relationship under the circumstances of illegal transfer of contracts and subcontracting of construction projects.From the illegal subcontracting,the subcontracting behavior,the responsibility and the protection of the actual constructor’s rights,the author puts forward some suggestions in combination with the current situation of the legislative jurisprudence in China,hopes that it will play a positive role in curbing the growth of illegal transfer of contracts and subcontracting,and standardizing the implementation of construction contracts,expected to achieving a balance between protecting the rights of construction entities and maintaining social stability.In addition to the introduction and conclusion,this paper has four parts.The first part is about the legal issues of illegal transfer of contracts and subcontracting in construction contract.What is illegal transfer of contracts? What is subcontracting? What are the legal consequences of illegal transfer of contracts and subcontracting? How to protect the rights of the actual constructor? This paper starts from a case and discusses the disagreements and referee results of the basic case.To some certain extent,it shows that there are many links in such cases,and the interests of all parties are complicated and divided.For the subject involved,it is difficult to unify the understanding of the basic legal relationship and legal consequences,thus causing my own thinking about the identification,legal consequences and protection of the actual constructor’s rights of the construction project illegal transfer of contracts and subcontracting.The second part is about the identifying and the distinction of illegal transfer of contracts and subcontracting.Firstly,it introduces the contract awarding and contracting links and related content of the construction project,and then analyzes the current legal provisions and legal principles of illegal transfer of contracts and subcontracting behavior,and summarizes the criteria for identifying illegal transfer of contracts and subcontracting behavior,then making a distinction.Explain the legal responsibility for illegal transfer of contracts and subcontracting and the consequences of invalidating the contract.The third part is the protection of the actual constructor and their rights.Under the research and analysis of the current law’s regulations on actual constructor,the concept of the actual constructor is first defined to determine the scope of the subject.Secondly,the different theories are combined to explore the basis of the actual constructor’s rights.On this basis,combined with the judicial interpretation and the guidance of the local courts,the scope of rights that the actual constructor can claim is clarified.The fourth part is the thinking about the regulation of illegal transfer of contracts and subcontracting of construction contract.Based on the analysis of cases,the basic theory of illegal transfer of contracts and subcontracting,and the judicial experience,thinking about the deficiency in legislation and judicature.this paper expounds the practical problems of project quality assurance and legal rights and interests guarantee of migrant workers while focusing on improvement of legislation.It is expected to be helpful in judicial practice,maintain sound and healthy development of the construction industry,and realize rights protection for all parties.