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营造业层层转包或分包在两岸地区屡见不鲜,一些营造公司往往标得工程签约后,非在履约过程中负责整体施工,而将工程交付下游无资质的小包商施作;有的工程甚至转包多次,以致使得整个工程被肢解得支离破碎。另有总包商将工程以分包作业之次承揽或履行辅助人方式进行,易生层层剥削、偷工减料及职灾伤亡。本文将对两岸的转包及分包之法律制度与性质探讨,并对转包与非法分包之关联性作出区分。并且文末也对大陆判决进行剖析,俾从法律的角度遏阻违法转包外,论述合法分包对营建效率之提升,促进两岸建筑管理制度之接轨。
Subcontracting or subcontracting is not uncommon in the cross-strait areas. Some contracting companies tend to be responsible for the overall construction after signing the contracts but not for the contractors. However, some of the projects are even delivered to unqualified contractors in the downstream. Subcontracting many times, so that the entire project was dismembered fragmented. In addition, the main contractor will carry out subcontracting or performance of auxiliary works in sub-contracted operations, resulting in easy exploitation of layers, jerry-building and casualties. This article will discuss the legal systems and nature of subcontracting and subcontracting across the Taiwan Strait and make a distinction between subcontracting and illegal subcontracting. And at the end of the article, the author also analyzes the judgment of the mainland to serve as a deterrent to illegal subcontracting from the legal point of view, and discusses the legal subcontracting to improve the construction efficiency and promote the convergence of the building management system across the Taiwan Strait.