1、Leaders: provincial agricultural work Conference held in XX, which is our concern and love, will greatly promote XX agricultural and rural economic development. First of all, I am representing XX municipal party Committee and Government, extend a warm welcome to the attending leaders! XX has been gi
2、ven support and assistance to the province of agriculture, provincial agricultural Office, and expressed heartfelt thanks to all the friends! below, I XX with a brief report. A basic XX of XX municipality located (cities, omitted). One is the superior ecological environment. XX blue, clear, green, w
3、ater, air, 70% of land in the territory is covered with forests, grasslands, wetlands and waters, built 7 thousands of square kilometers of the total area of nature reserves. Within major industrial pollution sources, air quality at the national level, national levels, water quality, soil pollution,
4、 “pure land“ reputation, was heralded by the United Nations environmental officials “the most suitable place for human survival.“ Second, the enrichment of natural resources. A total area of more than 5 million mu of arable land (which owned 1.53 million acres), the annual grain output of more than
5、2 million tons and is located in the internationally recognized gold “cattle“, there should be more than 400,000 acres of grazing grassland, developing animal husbandry conditions; a total area of 4.1 million acres of forest land, rich in precious wood such as pine, ash, yellow pineapple, standing t
6、imber volume of more than 26 million cubic meters. Forest Xia has hundreds of species precious wildlife, more than 200 more species precious herbs, annual Super thousand tons of wild mushroom and reserves Super 100,000 tons of mountain dish; nectar plant throughout, can bee 100,000 group, is China “
7、bee of Xiang“, and national Northeast black bee reserves and important of bee products production base; can using water 2.5 billion cubic metres, should be fishing water 460,000 acres, rich big salmon, and “three spent five Luo“, North cold water specialty fish; found and proved reserves of mineral
8、resources has 36 species. Third, geopolitical advantages. XX open midpoint is located in the eastern part of the province along the border, 264 km long border, with national road passenger and freight transport port, built on the border between China and Russia has the largest permanent boundary Riv
9、er Bridge, running at full capacity the annual cargo capacity of up to 2.6 million tons. Russia two (HABA and Marina), two cities (Iman and Lesozavodsk) is the Russian Far East in developed areas. Lesozavodsk is only 8 km from XX port corresponding to the port of markovo, Lu Rinuo station is one of
10、three railway marshalling yards in the far East, the far East-Siberian railway and a parallel road runs through the pass. By rail and road, to the North by HABA capital Khabarovsk, the Russian hinterland, radiation in the CIS and Eastern European countries; to the South through the port of Vladivost
11、ok and the nahuo card on the sea, to reach South Korea, Japan and other Pacific Rim countries and regions. Four is rich in tourism resources. XX tourist resources types, many attractions, beautiful scenery of the Sino-Russian border-river-wusuli River, a famous treasure island, known as the “Orienta
12、l Maginot line“ of the Japanese invading army Tiger underground fortress ruins, General Chi编号：论建设工程违法转包及挂靠行为的严格民事责任论问提要：楼宇建设是关系到国计民生的百年大计。但是目前我国建设工程领域的违法转包及挂靠等违法行为比较普遍，这与我国建筑工程方面的立法偏重行政监督，轻视对民事责任等方式的利用有关。笔者通过对审判实践中相关案例的研究，分析了对违法转包及挂靠等违法行为采取严格的民事责任等措施的必要性，并根据审判实践和学界的研究成果，对相关具体民事责任进行制度构建，以期通过加重违法行为人的民
13、事责任和鼓励合法权益人积极监督等手段，有效减少上述违法行为，保障工程质量和国家、人民生命财产安全。关键词：违法转包 挂靠 严格民事责任全文共 10810 字以下正文：建设工程领域的违法转包和挂靠行为在我国较为普遍，笔者在从事民事审判工作中，接触了大量的建设工程案件，深知在这一领域，存在诸多的违法行为。笔者在审判工作中曾遇到这样一则案件，A 开发公司承建某大学的宿舍楼等工程时，与该大学约定在 9 月 1 日新生开学前交付使用，供新生入住。双方签订合同后，A 开发公司与 B 建筑公司签订一份建设工程施工合同，由 B 建筑公司负责其中的两栋宿舍楼的建设施工，合同还约定如果 B 建筑Leaders:
14、provincial agricultural work Conference held in XX, which is our concern and love, will greatly promote XX agricultural and rural economic development. First of all, I am representing XX municipal party Committee and Government, extend a warm welcome to the attending leaders! XX has been given suppo
15、rt and assistance to the province of agriculture, provincial agricultural Office, and expressed heartfelt thanks to all the friends! below, I XX with a brief report. A basic XX of XX municipality located (cities, omitted). One is the superior ecological environment. XX blue, clear, green, water, air
16、, 70% of land in the territory is covered with forests, grasslands, wetlands and waters, built 7 thousands of square kilometers of the total area of nature reserves. Within major industrial pollution sources, air quality at the national level, national levels, water quality, soil pollution, “pure la
17、nd“ reputation, was heralded by the United Nations environmental officials “the most suitable place for human survival.“ Second, the enrichment of natural resources. A total area of more than 5 million mu of arable land (which owned 1.53 million acres), the annual grain output of more than 2 million
18、 tons and is located in the internationally recognized gold “cattle“, there should be more than 400,000 acres of grazing grassland, developing animal husbandry conditions; a total area of 4.1 million acres of forest land, rich in precious wood such as pine, ash, yellow pineapple, standing timber vol
19、ume of more than 26 million cubic meters. Forest Xia has hundreds of species precious wildlife, more than 200 more species precious herbs, annual Super thousand tons of wild mushroom and reserves Super 100,000 tons of mountain dish; nectar plant throughout, can bee 100,000 group, is China “bee of Xi
20、ang“, and national Northeast black bee reserves and important of bee products production base; can using water 2.5 billion cubic metres, should be fishing water 460,000 acres, rich big salmon, and “three spent five Luo“, North cold water specialty fish; found and proved reserves of mineral resources
21、 has 36 species. Third, geopolitical advantages. XX open midpoint is located in the eastern part of the province along the border, 264 km long border, with national road passenger and freight transport port, built on the border between China and Russia has the largest permanent boundary River Bridge
22、, running at full capacity the annual cargo capacity of up to 2.6 million tons. Russia two (HABA and Marina), two cities (Iman and Lesozavodsk) is the Russian Far East in developed areas. Lesozavodsk is only 8 km from XX port corresponding to the port of markovo, Lu Rinuo station is one of three rai
23、lway marshalling yards in the far East, the far East-Siberian railway and a parallel road runs through the pass. By rail and road, to the North by HABA capital Khabarovsk, the Russian hinterland, radiation in the CIS and Eastern European countries; to the South through the port of Vladivostok and th
24、e nahuo card on the sea, to reach South Korea, Japan and other Pacific Rim countries and regions. Four is rich in tourism resources. XX tourist resources types, many attractions, beautiful scenery of the Sino-Russian border-river-wusuli River, a famous treasure island, known as the “Oriental Maginot
25、 line“ of the Japanese invading army Tiger underground fortress ruins, General Chi2公司提前完成，A 开发公司要给 B 建筑公司奖励金等条款。但是 B 建筑公司并未实际施工，其将工程全部转包给没有施工资质的 C 个人，C 向 B 缴纳一定数量的“ 管理费”并与 B签订了一份“内部承包合同 ”，约定由 C 个人负责施工，自负盈亏，B 建筑公司不承担施工中的任何法律责任。工程竣工后，A 开发公司发现工程存在较为严重的质量问题，就要求B 建筑公司提供相关技术经济资料和内业资料以便进行验收，但 B 建筑公司没有提供，于是
26、双方发生争执，时已临近 9 月1 日，新生即将入学，A 开发公司因为没有相关技术经济资料和内业资料，无法进行申报和验收，但如果这两栋宿舍楼不投入使用，数千名新生入学后就没有地方住，经协调，在没有经过正式验收的情况下，A 开发公司只得同意宿舍楼投入使用，但拒绝支付 B 建筑公司剩余工程款和奖励金， B 建筑公司于是起诉 A 开发公司，要求支付剩余工程款和提前竣工的奖励金。诉讼过程中，A 开发公司委托鉴定机构对工程质量进行评估，发现存在多处质量问题。在该案的审理过程，一审、二审法院没有发现 B 建筑公司与 C 个人的转包协议，相反 B 建筑公司提供一份聘用 C 个人担任驻工地代表的内部协议，因此法
27、院没能认定存在非法转包，同时依据 A 开发公司已经将该宿舍楼投入使用，且该工程的地基和框架并没有严重的质量问题这两方面的理由，适用 2004 年最高人民法院关于建设工程施工合同纠纷的司法解释（以下简称 04Leaders: provincial agricultural work Conference held in XX, which is our concern and love, will greatly promote XX agricultural and rural economic development. First of all, I am representing XX m
28、unicipal party Committee and Government, extend a warm welcome to the attending leaders! XX has been given support and assistance to the province of agriculture, provincial agricultural Office, and expressed heartfelt thanks to all the friends! below, I XX with a brief report. A basic XX of XX munic
29、ipality located (cities, omitted). One is the superior ecological environment. XX blue, clear, green, water, air, 70% of land in the territory is covered with forests, grasslands, wetlands and waters, built 7 thousands of square kilometers of the total area of nature reserves. Within major industria
30、l pollution sources, air quality at the national level, national levels, water quality, soil pollution, “pure land“ reputation, was heralded by the United Nations environmental officials “the most suitable place for human survival.“ Second, the enrichment of natural resources. A total area of more t
31、han 5 million mu of arable land (which owned 1.53 million acres), the annual grain output of more than 2 million tons and is located in the internationally recognized gold “cattle“, there should be more than 400,000 acres of grazing grassland, developing animal husbandry conditions; a total area of
32、4.1 million acres of forest land, rich in precious wood such as pine, ash, yellow pineapple, standing timber volume of more than 26 million cubic meters. Forest Xia has hundreds of species precious wildlife, more than 200 more species precious herbs, annual Super thousand tons of wild mushroom and r
33、eserves Super 100,000 tons of mountain dish; nectar plant throughout, can bee 100,000 group, is China “bee of Xiang“, and national Northeast black bee reserves and important of bee products production base; can using water 2.5 billion cubic metres, should be fishing water 460,000 acres, rich big sal
34、mon, and “three spent five Luo“, North cold water specialty fish; found and proved reserves of mineral resources has 36 species. Third, geopolitical advantages. XX open midpoint is located in the eastern part of the province along the border, 264 km long border, with national road passenger and frei
35、ght transport port, built on the border between China and Russia has the largest permanent boundary River Bridge, running at full capacity the annual cargo capacity of up to 2.6 million tons. Russia two (HABA and Marina), two cities (Iman and Lesozavodsk) is the Russian Far East in developed areas.
36、Lesozavodsk is only 8 km from XX port corresponding to the port of markovo, Lu Rinuo station is one of three railway marshalling yards in the far East, the far East-Siberian railway and a parallel road runs through the pass. By rail and road, to the North by HABA capital Khabarovsk, the Russian hint
37、erland, radiation in the CIS and Eastern European countries; to the South through the port of Vladivostok and the nahuo card on the sea, to reach South Korea, Japan and other Pacific Rim countries and regions. Four is rich in tourism resources. XX tourist resources types, many attractions, beautiful
38、 scenery of the Sino-Russian border-river-wusuli River, a famous treasure island, known as the “Oriental Maginot line“ of the Japanese invading army Tiger underground fortress ruins, General Chi3年司法解释）第十三条有关发包人擅自将工程投入使用的条款，支持了 B 建筑公司的诉讼请求，同时判令 A 开发公司赔偿 B 建筑公司工程款及利息的损失。后 B 建筑公司因该工程偷漏税款被稽查，C 个人向公安机关承认
39、与 B 建筑公司系挂靠关系，双方还签订了一份挂靠协议，言明对于该工程，一切债权债务及工程质量由 C 个人负担，B 建筑公司只负责收取一定数额的管理费。A 开发公司据此申请再审，终审法院查明，C 个人与 B 建筑公司不存在劳动关系，其人事关系、社会保险等都不在 B 建筑公司处办理，双方实际上签订了一份“ 黑白合同” ，所谓 的聘用协议为白合同，是虚假的意思表示，而双方签订的挂靠协议是真实的意思表示，根据该协议B 建筑公司已经明确表示对该工程的质量不负担任何责任，且在该工程施工过程中 B 建筑公司也没有派技术人员进驻工地，因此认定 B 建筑公司将该工程非法转包给没有工程资质的 C 个人，或者说是
40、C 个人挂靠了 B 建筑公司进行的工程施工。法院判定，由于 B 建筑公司没有按照合同约定实际参与施工，而是非法转包，因此从一开始就存在对 A 开发公司的违约， A 开发公司将宿舍楼投入使用的行为，也是为了避免违约损失的进一步扩大而做出的挽救行为，同时由于司法解释是保护合法行为的，违约方不应当再从其违法、违约行为中受益，因此不适用 04 年建设工程施工合同司法解释的有Leaders: provincial agricultural work Conference held in XX, which is our concern and love, will greatly promote XX
41、agricultural and rural economic development. First of all, I am representing XX municipal party Committee and Government, extend a warm welcome to the attending leaders! XX has been given support and assistance to the province of agriculture, provincial agricultural Office, and expressed heartfelt t
42、hanks to all the friends! below, I XX with a brief report. A basic XX of XX municipality located (cities, omitted). One is the superior ecological environment. XX blue, clear, green, water, air, 70% of land in the territory is covered with forests, grasslands, wetlands and waters, built 7 thousands
43、of square kilometers of the total area of nature reserves. Within major industrial pollution sources, air quality at the national level, national levels, water quality, soil pollution, “pure land“ reputation, was heralded by the United Nations environmental officials “the most suitable place for hum
44、an survival.“ Second, the enrichment of natural resources. A total area of more than 5 million mu of arable land (which owned 1.53 million acres), the annual grain output of more than 2 million tons and is located in the internationally recognized gold “cattle“, there should be more than 400,000 acr
45、es of grazing grassland, developing animal husbandry conditions; a total area of 4.1 million acres of forest land, rich in precious wood such as pine, ash, yellow pineapple, standing timber volume of more than 26 million cubic meters. Forest Xia has hundreds of species precious wildlife, more than 2
46、00 more species precious herbs, annual Super thousand tons of wild mushroom and reserves Super 100,000 tons of mountain dish; nectar plant throughout, can bee 100,000 group, is China “bee of Xiang“, and national Northeast black bee reserves and important of bee products production base; can using wa
47、ter 2.5 billion cubic metres, should be fishing water 460,000 acres, rich big salmon, and “three spent five Luo“, North cold water specialty fish; found and proved reserves of mineral resources has 36 species. Third, geopolitical advantages. XX open midpoint is located in the eastern part of the pro
48、vince along the border, 264 km long border, with national road passenger and freight transport port, built on the border between China and Russia has the largest permanent boundary River Bridge, running at full capacity the annual cargo capacity of up to 2.6 million tons. Russia two (HABA and Marina
49、), two cities (Iman and Lesozavodsk) is the Russian Far East in developed areas. Lesozavodsk is only 8 km from XX port corresponding to the port of markovo, Lu Rinuo station is one of three railway marshalling yards in the far East, the far East-Siberian railway and a parallel road runs through the pass. By rail and road, to the North by HABA capital Khabarovsk, the Russian hinterland, radiation in the CIS and Eastern European countries; to the South through the port of Vladivostok and the nahuo card on the sea, to reach South Korea, Japan and other Pacific Rim countries an
