建设工程违法分包的界定及其法律后果-民商法专业论文.docxVIP

II II Abstract According to the process design of the construction project, the construction project is divided into three parts, including contract, the contractor and subcontractors. As to the legal nature of subcontracting, there is mainly three points, the fulfillment replaced by the third party, debt in lieu of performance and the performance of the coexistence of debt which can precisely explain the legal nature of subcontracting. The construction contract is distributed in the different segments of the construction project, and plays an important role in the management of construction projects. It is divided into three parts, construction project bidding, contracting and subcontracting, which has different meanings and manifestations. In particular, the legal nature of illegal subcontracting is namely the coexistence of debt obligations. By combing the provisions of existing laws, judicial interpretations and cases, the standard of illegal subcontracting includes the following aspects:(1)whether actors comply with the appropriate qualifications or make a real recognition;(2)whether the object of conduct (the construction project) has to be subcontracting; (3)whether subcontracting certain conditions are met, such as sub-contract filing and others; (4) whether the behavior of actors comply with the law, such as the project should be tender and so on. Further, the paper refines the different types of illegal subcontracting, such as subcontractor without corresponding qualifications, the construction projects without subcontracting, the subcontracting without the record, construction project parcelled out to several contractors, subcontracting again etc. Then the paper explores the legislative purpose of illegal subcontracting that is to protect the interests of the parties, to ensure the quality of the project and maintain construction engineering market order and uses economic theory of information asymmetry and externalities, the value of the transaction cost