In the field of construction engineering, due to the huge business volume, projects are often subcontracted and subcontracted layer by layer, and construction enterprises need to have a certain entry threshold, so there are still situations of transfer and lending of qualifications in practice.
Joint and several liability refers to a kind of civil liability in which two or more parties bear all or part of their joint debts in accordance with the provisions of the law or the agreement of the parties, and can give rise to their internal debt relations. When the responsible person is the majority, each person is responsible for paying off all debts, and there is a joint and several relationship between the responsible persons.
In the field of construction projects, the law naturally also stipulates the corresponding joint and several liability to protect the rights and interests of the parties to the greatest extent. A project will involve many parties, so the employer, the contractor, and the actual builder must clearly know what joint and several liabilities they have to bear and who will jointly and severally bear the joint and several liabilities with themselves, so that all parties can take some risk prevention measures in advance.
1. Joint and several liability for unqualified quality when subcontracting or subcontracting
If the general contractor of the construction project is contracted, the general contractor shall be responsible for the quality of the project, and if the general contractor subcontracts the construction project to other units, it shall be jointly and severally liable for the quality of the subcontracted project and the subcontractor.
Legal basis
Article 67 of the Construction Law of the People's Republic of China stipulates: "If the contractor subcontracts the contracted project or subcontracts in violation of the provisions of this Law, it shall be ordered to make corrections, confiscate the illegal gains, impose a fine, and may be ordered to suspend business for rectification and reduce the qualification level; where the circumstances are serious, the qualification certificate is revoked. The contracting unit has the illegal conduct provided for in the preceding paragraph. For the losses caused by the subcontracted project or the illegally subcontracted project not meeting the specified quality standards, the unit accepting the subcontract or subcontract shall be jointly and severally liable for compensation. ”
2. Joint and several liability in joint contracting
When faced with some large-scale construction projects or construction projects with complex structures, when one contractor is unable to undertake them independently, two or more contractors may jointly contract together, which is called a consortium. These co-contractors are a temporary cooperative relationship based on a consortium agreement, and they are jointly and severally liable for the performance of the contract. Therefore, for any contractor in the consortium, the following two points need to be noted:
1. The scope of joint and several liability includes the performance of all contracts.
2. The jointly and severally liable person is the contractor who signs the consortium agreement and jointly contracts the project.
Legal basis
Article 27 of the Construction Law of the People's Republic of China Large-scale construction projects or construction projects with complex structures may be jointly contracted by two or more contracting units. The parties to the joint contract shall be jointly and severally liable for the performance of the contract. Where two or more units with different qualification levels carry out joint contracting, they shall contract the project in accordance with the scope of the business license of the unit with a lower qualification level.
3. Joint and several liability in borrowing qualifications
Borrowing qualifications is what we often call affiliation. Affiliation may seem similar to subcontracting, but there is a huge difference in legal aspects.
If a construction enterprise transfers or lends a qualification certificate or otherwise allows others to contract a project in the name of the enterprise, the construction enterprise and the unit or individual using the name of the enterprise shall be jointly and severally liable for the losses caused by the contracted project not meeting the specified quality standards.
Legal basis
Article 66 of the Construction Law of the People's Republic of China stipulates: "If a construction enterprise transfers or lends its qualification certificate or otherwise allows others to contract projects in the name of the enterprise, it shall be ordered to make corrections, confiscate illegal gains, impose a fine, and may be ordered to suspend business for rectification and reduce the qualification level; where the circumstances are serious, the qualification certificate is revoked. For the losses caused by the contracted project not meeting the specified quality standards, the construction enterprise and the unit or individual using the name of the enterprise shall be jointly and severally liable for compensation. ”
Article 7 of the Interpretation (I) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts (Fa Shi [2020] No. 25) stipulates that: "Where a unit or individual lacking qualifications signs a construction contract in the name of a qualified construction enterprise, and the employer requests the lender and the borrower to bear joint and several liability for the losses caused by the lending qualifications, such as the unqualified quality of the construction project, the people's court shall support it." Article 15 stipulates: "In the event of a dispute over the quality of a construction project, the employer may file a lawsuit with the general contractor, the subcontractor and the actual constructor as co-defendants." ”
4. Joint and several liability for the payment of migrant workers' wages
If a general contractor issues or subcontracts a project to an organization or individual that does not have the qualifications of an employing entity in violation of regulations, it shall be jointly and severally liable for paying off the arrears of wages.
Legal basis
Article 12 of the Interim Measures for the Administration of Wage Payment of Migrant Workers in the Construction Field stipulates that: "A general project contractor shall not contract or subcontract a project in violation of regulations to an organization or individual that does not have the qualifications of an employing entity, otherwise it shall be jointly and severally liable for paying off the arrears of wages." ”
Article 30 of the Regulations on Guaranteeing the Payment of Wages to Farmers (effective as of May 1, 2020) stipulates that "the subcontractor shall be directly responsible for the management of the real-name system and the payment of wages to the migrant workers recruited. The general contractor shall supervise the labor employment and wage payment of the subcontractor. If the subcontractor is in arrears with the wages of migrant workers, the general construction contractor shall first pay off the wages and then recover the compensation in accordance with the law. If the construction project is subcontracted and the wages of migrant workers are in arrears, the general construction contractor shall first pay off the debt, and then recover the compensation in accordance with the law. ”
5. Joint and several liability for legal subcontracting
The general contractor of the construction project shall be responsible for the construction unit in accordance with the provisions of the general contract; The subcontractor shall be responsible to the general contractor in accordance with the provisions of the subcontract. The general contractor and the subcontractor shall be jointly and severally liable to the construction unit for the subcontracted project.
Legal basis
Article 29 of the Construction Law of the People's Republic of China stipulates that "the general contractor of a construction project may contract part of the contracted project to a subcontractor with corresponding qualifications; However, except for the subcontract agreed in the general contract, it must be approved by the construction unit. In the case of general contracting, the construction of the main structure of the construction project must be completed by the general contractor itself.
The general contractor of the construction project shall be responsible for the construction unit in accordance with the provisions of the general contract; The subcontractor shall be responsible to the general contractor in accordance with the provisions of the subcontract. The general contractor and the subcontractor shall be jointly and severally liable to the construction unit for the subcontracted project.
The general contractor is prohibited from subcontracting the project to a unit that does not have the corresponding qualifications. It is forbidden for a subcontractor to subcontract the project it has contracted. ”
6. Joint and several liability of project supervision
If the project supervision unit colludes with the construction unit or the construction enterprise to deceive and reduce the quality of the project, and causes losses, it shall be jointly and severally liable for compensation.
If the project supervision unit colludes with the contractor to seek illegal benefits for the contractor and causes losses to the construction unit, it shall be jointly and severally liable for compensation with the contractor.
Legal basis
Article 35 of the Construction Law of the People's Republic of China stipulates: "If the project supervision unit does not perform the supervision obligations in accordance with the provisions of the entrusted supervision contract, does not inspect the project that should be supervised and inspected or does not inspect in accordance with the regulations, and causes losses to the construction unit, it shall bear the corresponding liability for compensation."
If the project supervision unit colludes with the contractor to seek illegal benefits for the contractor and causes losses to the construction unit, it shall be jointly and severally liable for compensation with the contractor. Article 69 stipulates: "If the project supervision unit colludes with the construction unit or construction enterprise to commit fraud and reduce the quality of the project, it shall be ordered to make corrections, impose a fine, reduce the qualification level or revoke the qualification certificate; where there are unlawful gains, they are to be confiscated; if the loss is caused, it shall be jointly and severally liable for compensation; where a crime is constituted, criminal responsibility is pursued in accordance with law. ”
7. The employer shall be conditionally liable to the actual constructor
Joint and several liability
If the actual constructor sues the employer, if the employer owes the subcontractor or the illegal subcontractor the construction project price, the employer shall be jointly and severally liable to the actual constructor within the scope of the unpaid project payment.
Legal basis
Article 43 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts (I) (Fa Shi [2020] No. 25) stipulates that: "If the actual constructor sues the subcontractor or illegal subcontractor as the defendant, the people's court shall accept it in accordance with law. Where the actual contractor claims rights with the employer as the defendant, the people's court shall add the subcontractor or illegal subcontractor as the third party in the case, and after ascertaining the amount owed by the employer to the subcontractor or the illegal subcontractor for the construction project price, make a judgment that the employer shall bear responsibility for the actual contractor within the scope of the unpaid construction project price. ”
8. The general contractor and the subcontractor shall be jointly and severally liable for production safety
The general contractor shall subcontract the construction project to other units in accordance with the law, and the general contractor and the subcontractor shall be jointly and severally liable for the safety production of the subcontracted project.
Legal basis
Regulations on the Administration of Work Safety in Construction Projects
Article 24 Where a construction project is subject to general contracting, the general contractor shall be responsible for the safety of production at the construction site. The general contractor shall complete the construction of the main structure of the construction project on its own.
If the general contractor subcontracts the construction project to other units in accordance with the law, the subcontract shall specify their respective rights and obligations in terms of production safety. The general contractor and the subcontractor shall be jointly and severally liable for the safety production of the subcontracted project.
The subcontractor shall obey the general contractor's production safety management, and if the subcontractor fails to obey the management and causes a production safety accident, the subcontractor shall bear the main responsibility.
9. Collapse of buildings, structures or other facilities
Joint and several liability for damage caused to persons
Where a building, structure or other facility collapses or collapses and causes damage to others, the construction unit and the construction unit shall be jointly and severally liable, unless the construction unit and the construction unit can prove that there are no quality defects.
Legal basis
Article 1252 of the Civil Code stipulates: "Where a building, structure or other facility collapses or collapses and causes damage to others, the construction unit and the construction unit shall bear joint and several liability, unless the construction unit and the construction unit can prove that there are no quality defects." After the construction unit or construction unit has compensation, if there are other responsible persons, it has the right to recover from the other responsible persons for the reasons of the owner, manager, user or a third party. Where the collapse or collapse of structures or other facilities causes damage to others, the owner, manager, user or third party shall bear tort liability. Article 1253 stipulates: "Where a building, structure or other facility, as well as its shelving or hanging objects, falls off or falls, causing damage to others, and the owner, manager or user cannot prove that he is not at fault, he shall bear tort liability." After the owner, manager or user makes compensation, if there are other responsible persons, they have the right to recover from the other responsible persons. ”
10. Joint and several guarantee liability in the guarantee of the construction contract
Ministry of Construction, Several Provisions on the Implementation of Engineering Construction Contract Guarantee in Real Estate Development Projects (for Trial Implementation) (Jian Shi [2004] No. 137)
Article 4: The guarantee provided by the guarantor shall be a general guarantee or a joint and several liability guarantee.
Article 5: The guarantee referred to in these provisions is divided into bid guarantee, owner's project payment guarantee, contractor performance guarantee and contractor payment guarantee. Bid security can take the form of bid bond or guarantee. The owner's payment guarantee, contractor's performance guarantee and contractor's payment guarantee shall be in the form of guarantee. If the parties have not agreed on the form of guarantee or the agreement is not clear, they shall bear the guarantee liability in accordance with the joint and several liability guarantee.
Source: Legal Knowledge