Discussion on Labor Subcontracting in Construction Engineering

Summary:In order to standardize the order of the construction labor market and ensure the quality and safety management of construction projects, it is strictly forbidden to subcontract labor operations to "contractors" without any qualifications, and this paper makes a corresponding analysis from the concept, characteristics, legal elements, and the difference between labor subcontracting and subcontracting and dismemberment.
   Key words:Labor subcontracting; legal requirements; subcontracting, dismemberment subcontracting

Overview of 1. labor subcontracting
(I) the concept of labor subcontracting
Labor subcontracting, also known as labor subcontracting, refers to the activities of construction enterprises or professional contracting enterprises that contract labor operations in housing construction and municipal infrastructure projects to be completed by labor subcontracting enterprises with corresponding qualifications. The labor subcontracting of the project generally does not require the permission of the contractor or contractor. The owner shall not appoint a labor contractor, nor shall the labor contractor subcontract or subcontract the labor work under the contract to other labor contracting units or others with corresponding qualifications.
The concept of subcontracting is mentioned in the the People's Republic of China Construction Law promulgated in 1997, and in the the People's Republic of China Contract Law promulgated thereafter, but the concept of subcontracting is subcontracting of construction works and does not involve labor subcontracting. In 2001, the Ministry of Construction promulgated the "Construction Enterprise Qualification Management Regulations" for the first time defined the concept of labor subcontracting, the construction enterprise qualification is divided into construction general contracting, professional contracting and labor subcontracting three sequences. It also stipulates that enterprises that have obtained labor subcontracting qualifications may undertake labor operations subcontracted by construction general contracting enterprises or professional contracting enterprises.
In labor subcontracting, the labor contractor only provides labor services, while the management of materials, equipment and technology is still provided by the general contractor. Labor subcontracting is purely the use of labor, and all other construction technologies, equipment and materials are entirely the responsibility of the general contractor.
Characteristics of (II) labor subcontracting
1, labor subcontracting is the contract from the general contract, is based on the existence of the construction contract as the premise of the only element, there is no construction contract there is no labor subcontracting contract.
2, the content of labor subcontracting is the construction of labor services, so the labor subcontracting contract is the contract of the contractor does not package materials or the contract of the package accessories.
3, the main body of labor subcontracting is the corresponding qualification of the enterprise. The contractor of a labor subcontract is the general contractor of the construction project or the contractor of a professional subcontract; the contractor is a labor enterprise with corresponding qualifications. Since the main body of the labor contract is the enterprise, it constitutes the legal relationship between the enterprises.
4, labor subcontracting does not require the consent of the contractor. Labor subcontracting only exists between the contracting of construction services, its content is construction services rather than sub-projects, labor subcontracting and the contractor has no direct legal relationship, the general contractor or professional subcontracting contractor contracting services, without the consent of the construction unit or general contractor. According to the provisions of the 29th Article of the Construction Law, the subcontracting of the project must be approved by the construction unit.
Compulsory requirements and qualifications of (III) labor subcontracting
In accordance with the provisions of the Ministry of Construction on the Administration of the Qualification of Construction Enterprises and the Opinions on the Establishment and Improvement of the Labor Subcontracting System for the Development of Construction Labor Enterprises, enterprises undertaking labor subcontracting must obtain the corresponding labor subcontracting qualifications, and it is strictly prohibited to subcontract labor operations to "contractors". Therefore, for engineering labor subcontracting, the primary requirement is that the labor subcontractor can only be a labor subcontracting enterprise with the qualification to undertake the corresponding labor operation, and does not allow individuals to undertake labor operations.
The legal elements of 2. labor subcontracting.
Article 7 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Disputes over Construction Contracts for Construction Projects Article 7 A labor subcontract signed between a contractor with legal qualifications for labor operations and a general contractor or subcontractor shall not be supported if the parties request confirmation of invalidity on the grounds that the subcontract construction project violates the provisions of the law. The legal elements of a labor contract must have the following points.
(I) the main elements. The labor contractor is the general contractor of the construction project or the contractor of the professional subcontracting, and the labor contractor must be an enterprise with the qualification of labor contracting in the construction industry.
(II) means the elements. The content of the labor subcontract must be agreed by the general contractor of the construction project, or the contractor of the professional subcontract and the labor contractor.
(III) the object element. Labor subcontracting is not a project that is allowed to be subcontracted by national law and public order, but a labor service in a construction project. In labor subcontracting, it is not allowed to have contract materials.
(IV) formal elements. Article 270 of the Contract Law and article 15 of the Construction Law clearly stipulate that subcontracts for construction projects must be in writing. A labor subcontract is a type of construction contract and must also be in writing.
Only if the above elements are established at the same time, can constitute a legal and effective labor subcontracting act.
The distinction between 3. labor subcontracting and engineering subcontracting and dismemberment subcontracting.
Project subcontracting refers to the act of the (general) contractor of a construction project, in violation of laws and regulations, changing the subject of the contract or not changing the subject of the contract, but taking the contract in escrow and not participating in on-site management. According to Article 272 of the Contract Law, subcontracting means that the contractor does not perform the contract after contracting the construction project, directly subcontracting all the projects or dismembering all the construction projects contracted by it and subcontracting them to others in the name of subcontracting.
Dismemberment subcontracting refers to the act of the construction unit breaking down the construction project that should be completed by one contracting unit into several parts and subcontracting to different contracting units.
China's Contract Law and Construction Law strictly prohibit the subcontracting and dismemberment of construction projects. The Construction Law clearly stipulates that the contracting unit is prohibited from subcontracting all the construction projects it has contracted to others, and the contracting unit is prohibited from subcontracting all the construction projects it has contracted to others in the name of subcontracting after dismemberment; the State Council's Construction Project Quality Management Regulations also make more detailed provisions on project subcontracting and dismemberment subcontracting
The difference between labor subcontracting and engineering subcontracting and dismemberment subcontracting:
1) The subject is different. The main body of labor subcontracting is the general contractor of construction project or the contractor of professional subcontracting and the labor contractor with the qualification of labor subcontracting in the construction industry. Dismember the main body of the contract is the contractor and different contractors.
2) The content is different. The content of labor subcontracting is the labor construction part of the construction project.
3, the validity of the contract is different. Labor subcontracting is a legal act, which is not prohibited and supported by law; subcontracting and dismemberment of subcontracting are prohibited by law.
The legal consequences are different. For labor subcontracting, both parties shall bear corresponding responsibilities in accordance with the contract. In case of quality disputes, even if it is the responsibility of the labor contractor, the contract issuing party of the labor subcontracting can only assume the responsibility to the construction unit or the general contractor of the construction project, and then pursue the responsibility to the labor contractor. Both parties of the subcontracting party shall be jointly and severally liable to the employer for the quality problems caused regardless of which party. The quality problems caused by the dismemberment contract shall be jointly borne by the contractor and the dismemberment contractor.
4. analysis of the current labor subcontracting defects and their causes, in order to strengthen the management of labor subcontracting.
At present, China's laws and regulations on the construction of labor subcontracting is not detailed provisions, only the Ministry of Construction's departmental regulations "construction enterprise qualification management regulations", the Supreme People's Court "the Supreme People's Court on the trial of construction contract disputes cases applicable to the interpretation of legal issues." In 2005, the Ministry of Construction issued another "Opinions of the Ministry of Construction on Establishing and Improving the Labor Subcontracting System and Developing Construction Labor Enterprises". The guiding ideology of the opinion is intended to take the development of labor enterprises as a breakthrough, build a long-term mechanism to prevent the construction of migrant workers in arrears, standardize the order of the construction market, establish and improve the labor subcontracting system, adjust the organizational structure of the construction team of the whole industry, improve the professional quality of the labor team, and ensure the quality and safety of the project. The work goal of this opinion is to establish a basic and standardized construction labor subcontracting system throughout the country in three years from July 1, 2005. Migrant workers are basically directly absorbed by labor enterprises or other employment enterprises, and subcontracting by "contractors" is basically prohibited, to this end, it also provides a series of policy measures, such as simplifying the qualification approval procedures for construction labor subcontracting enterprises, general construction contracting, professional contracting enterprises must apply for social insurance, strengthen the supervision of the use of "employee education funds" in contracting enterprises, and increase The amount of funds invested in vocational training for migrant workers, etc., its purpose is to regulate the labor subcontracting of construction projects. However, up to now, there are still many imperfections in China's construction labor subcontracting. The main reasons are manifested in the following aspects:
1, the laws and regulations regulating the subcontracting of construction works are not perfect. It is recommended that in the revision of the "Construction Law", fully affirm the legal form of labor subcontracting, clarify the labor employment system in the labor subcontracting of construction projects, and strictly prohibit "contractors" from contracting labor projects.
2, the administrative departments at all levels to regulate the construction project labor subcontracting is not enough attention. It is recommended that government departments at all levels strengthen the management of labor services, attach importance to the development of labor enterprises, and establish and develop labor enterprises through multiple channels.
3. The labor subcontracting system is not yet standardized, and the legal rights of labor workers engaged in the construction industry cannot be effectively protected. It is suggested to strengthen the publicity of labor-related laws and regulations, enhance the awareness of labor workers' rights protection, and improve the labor subcontracting system from all aspects.
5. epilogue
The central government and various cities in my country have held many meetings to emphasize the improvement of the labor employment system, solve the problem of migrant workers' employment, and alleviate social pressure. They have also adopted corresponding administrative measures and methods to clarify the legal status of the construction labor subcontracting system and simplify the construction. It is believed that with the continuous improvement of the legal system, many problems in labor subcontracting will be resolved one by one.

This article won the second prize of Jinan lawyer's business paper selection in 2011