Because the quality of construction projects is closely related to the safety of people's lives and property, the state implements a strict market access system for construction enterprises. Article 26 of China's "Construction Law" stipulates: "Units that contract construction projects shall hold qualification certificates obtained according to law and undertake projects within the business scope permitted by their qualification grades"; "Construction enterprises are prohibited from exceeding the business scope permitted by the qualification grade of the enterprise or contracting projects in the name of other construction enterprises in any form. Construction enterprises are prohibited from allowing other units or individuals to use their qualification certificates and business licenses in any form to undertake projects in the name of the enterprise. " It can be seen that the construction enterprise can only enter the construction market after obtaining the qualification certificate, and can only sign the construction contract with the employer within the scope permitted by the qualification grade. However, due to the shortage of China's construction market and the fierce competition among contractors, the phenomenon of borrowing qualifications came into being. "Borrowing qualifications" here includes both unqualified individuals and units borrowing qualifications from qualified construction enterprises and construction enterprises with low qualifications borrowing qualifications from construction enterprises with high qualifications to meet the requirements of construction projects. This behavior is called "seizure" in law.

"Affiliated" generally has the following characteristics: 1, the affiliated person does not have the main qualification to engage in construction activities, or although he has the qualification to engage in construction activities, he does not have the qualification level suitable for the requirements of construction projects; 2. The affiliated construction enterprises have qualification certificates that are suitable for the requirements of construction projects, but they often lack the means and ability to undertake projects; 3. The affiliated person pays a certain amount of "management fee" to the affiliated construction enterprise. After receiving the "management fee", the affiliated construction enterprise enters into a contract in its own name and goes through the relevant formalities, but it does not manage the actual construction activities, or the so-called "management" only stays in the form and does not bear substantive responsibilities such as technology and quality.

There are two main forms of "linking": the first is "directly borrowing qualifications", which is more common in construction enterprises with lower qualifications. Its operation mode is that low-qualified construction enterprises look for high-qualified construction enterprises that meet the requirements of construction projects, sign construction contracts with the employer in the name of high-qualified construction enterprises, and then the low-qualified construction enterprises directly carry out construction. The second type is "internal contracting type", which is common in individuals who simply do not have the construction ability of construction projects. The operation mode is that individuals look for construction enterprises that meet the engineering requirements, and the construction enterprises sign construction contracts with the employer. Affiliated construction enterprises appoint or employ affiliated personnel as their employees, and entrust them to serve as project managers or construction leaders. The two sides signed an internal contract, stipulating that the affiliated person shall undertake the responsibilities of personnel, finance, materials and construction management of the project, and that the affiliated construction enterprise shall be responsible for handling the external affairs of the project, and that the affiliated person shall pay the internal contract management fee to the affiliated construction enterprise. Compared with the "direct borrowing qualification type", the "internal contracting type" is more concealed.

Second, illegal subcontracting.

Subcontracting refers to the behavior that the contractor completely transfers the contracted project to others for contracting. Subcontracting has always been prohibited by Chinese laws, because it has many hazards, such as easy speculation, lack of real investment in the project, and easy occurrence of construction quality and safety accidents. Article 28 of the Construction Law stipulates: "It is forbidden for a contractor to subcontract all his contracted construction projects to others, and it is forbidden for a contractor to dismember all his contracted construction projects and subcontract them to others in the name of subcontracting"; Paragraph 2 of Article 272 of the Contract Law stipulates: "A contractor shall not subcontract all the construction projects he contracted to a third party, or dismember all the construction projects he contracted and subcontract them to a third party in the name of subcontracting".

According to the above laws, we can see that there are two forms of illegal subcontracting: the first is that the contractor subcontracts all construction projects to one person; The second is that the contractor dismembers all the construction projects and subcontracts them to many people in the name of subcontracting. These two forms of expression differ only in form, but not in substance. Therefore, in the trial practice, as long as the contractor does not send a project management team, does not carry out quality, safety and progress management, and fails to perform contractual obligations after undertaking the project, whether it directly subcontracts all the projects to others or subcontracts them separately in the name of subcontracting; Whether it is approved by the employer or not, this kind of behavior will be considered as subcontracting.

Third, illegal subcontracting.

Article 29 of the "Construction Law" stipulates: "The general contractor of a construction project may contract out some contracted projects to subcontractors with corresponding qualifications; Except for subcontracting 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 building project must be completed by the general contracting unit itself ... It is forbidden for the general contracting unit to subcontract the project to units that do not have the corresponding qualifications. Subcontractors are prohibited from subcontracting their contracted projects. " It can be seen that subcontracting itself is permitted by law, but it must be subcontracted under certain conditions. If these conditions are violated, it constitutes illegal subcontracting.

Article 29 of the Construction Law, the third paragraph of Article 272 of the Contract Law and the second paragraph of Article 78 of the Regulations on Quality Management of Construction Projects promulgated by the State Council all list the cases of "illegal subcontracting". Although the specific expression is slightly different, the definition of "illegal subcontracting" is basically the same. In summary, "illegal subcontracting" mainly refers to the following acts:

1, the general contractor subcontracts the construction project to units without corresponding qualifications;

2, there is no agreement in the general contract of construction projects, and without the consent of the construction unit, the contractor will be part of the project contracted by other units to complete;

3. The general contractor subcontracts the main structure of the construction project to other units;

4. Subcontractors subcontract the contracted projects.