我国建筑工程施工违法分包法律对策研究

发布时间：2019-01-10 17:30

【摘要】：在我国,违法分包这种法律明文禁止的违法行为长期存在,随着我国建筑领域管理层与劳务层相分离,此种违法行为越发猖獗。违法分包等违法行为是造成我国建筑市场混乱的“万恶之源”,频频引发重大安全质量事故,给广大人民群众的生命和财产造成不可估量的损失,也使我国国家形象受损。正因实践如此不堪,国家陆陆续续颁布了一系列的相关的法律法规,竭尽所能遏止此种违法行为之发生。但是从司法实践来看,效果不甚理想。我国法律法规虽对违法分包有明文规定,但相关规定不明确、不具体,更是缺乏实际操作性,而且对违法分包也没有明确的定义和认定标准,对合同效力规定之争议在理论层面和实践层面也普遍存在。正因如此,各地政府相继出台各种地方性法规和规章,各地高院亦相应出台了各种指导意见。这些法规、规章、规范性文件、指导意见因其产生的地域性,使得各地对违法分包的认定标准互不相同,有的甚至互相矛盾,造成同案不同判的尴尬局面;也使得行政主管部门与司法部门处理相关案件各行其是,缺乏统一认定查处的标准。鉴于此,本文将从建筑领域中涉及违法分包的典型案例入手,通过对案例的分析与总结,整理归纳我国关于违法分包的法律法规,结合实践完善其不合理之处,并给出治理违法行为在法律层面的对策。
[Abstract]:In our country, illegal subcontracting, which is prohibited by law, has existed for a long time. With the separation of management and labor layer in the field of construction in our country, such illegal behavior becomes more and more rampant. Illegal behavior such as illegal subcontracting is the "root of all evil" that causes chaos in the construction market of our country, frequently causes the major safety and quality accident, causes inestimable loss to the lives and property of the broad masses of people, and also damages the national image of our country. Because practice is so bad, the country has issued a series of relevant laws and regulations, doing everything it can to curb the occurrence of such violations. But from the judicial practice point of view, the effect is not very ideal. Although the laws and regulations of our country have explicit provisions on illegal subcontracting, the relevant provisions are not clear, specific, and lack of practical operation, and there is no clear definition and standard of identification of illegal subcontracting. The dispute about the validity of contract also exists in theory and practice. As a result, local governments have issued a variety of local laws and regulations, local high-court issued a variety of guidance. These laws, regulations, normative documents and guidance opinions, because of their regional nature, make the local standards of illegal subcontracting different, some even contradictory, resulting in the embarrassing situation of different judgments in the same case; It also makes the administrative department and the judicial department deal with the related cases in their own way, and lack the standard to identify and deal with the cases. In view of this, this paper will start with the typical cases involving illegal subcontracting in the field of construction, through the analysis and summary of the cases, collate and sum up the laws and regulations on illegal subcontracting in our country, and improve its irrationality in combination with practice. It also gives the countermeasures to deal with the illegal behavior at the legal level.
【学位授予单位】：甘肃政法学院
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.297

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