兩岸營建工程轉包與分包制度比較——兼評大陸的一個相關案件判決

Comparison of Turn contracting and Subcontracting of Construction in Cross strait - Focus on Judgment of Mainland China

營造業層層轉包或分包在兩岸地區屢見不鮮，一些營造公司往往標得工程簽約後，非在履約過程中負責整體施工，而將工程交付下游無資質的小包商施作；有的工程甚至轉包多次，以致使得整個工程被肢解得支離破碎。另有總包商將工程以分包作業之次承攬或履行輔助人方式進行，易生層層剝削、偷工減料及職災傷亡。本文將對兩岸的轉包及分包之法律制度與性質探討，並對轉包與非法分包之關連性作出區分。並且文末也對大陸判決進行剖析，俾從法律的角度遏阻違法轉包外，論述合法分包對營建效率之提升，促進兩岸建築管理制度之接軌。

There are common disputes that turn contracting or illegal subcontracting of construction engineering by multi layers in cross strait areas. Some construction companies did not fulfill their contractual after bidding project, then which are transmitted to non qualified contractor for obtaining illegal benefits. Some projects are even transferred times, induced the whole construction project are divided to fragmentation. Moreover, some small projects with separation are gave to subcontracts, they are as a role of assistant to fulfill the construction contract, only low price by general contractors getting high profit. The above phenomenon will initiate for doing nothing profits, poor quality of engineering and occupational accident casualties of construction project. This article will investigate the legal requirements and systems of turn contracting and subcontracting both cross straits, then the illegal problems of construction works transmitted will study to connect with architectural markets. And the end is also to evaluate the judgment from Mainland China, to prevent the illegal subcontracting from legal point of view. We believe that the discussion in this article on the legal method on trans contracting and subcontracting, will enhance the efficiency of architectural markets, and promote the common standards of construction management in Taiwan Region and Mainland China.