[Direct answer]In the Beijing area, it's quite difficult to fully support the contracted amount as agreed upon. If an unqualified actual constructor signs a construction contract using the name of a qualified construction enterprise, it constitutes one of the circumstances where the contract is invalid; the management fee clause loses its direct basis for claim once the main contract is invalidated. In practice, courts generally do not support the agreed management fees, or, if the affiliated enterprise actually provides management input, qualification and personnel support, the court may consider the reasonable costs incurred by the enterprise within a reasonable range. Therefore, a more practical approach for both parties involved in the affiliation is to claim based on the actual input and the settlement of the completed project, rather than simply relying on the management fee clause to demand payment.

1. Problem background and typical scenarios

It's not uncommon to see subcontracting in small and medium-sized construction projects: contractors bid and sign contracts under the name of qualified enterprises, and the enterprises charge a certain percentage of management fees. After the project is completed, the two parties often have disputes over whether the management fees should be paid and how much should be deducted; more troublesome is that once there are quality or arrears problems, the identification of the responsible parties will also expose the subcontracting relationship.

II. Key points of dispute

First, the identification criteria for subcontracting, and how to distinguish subcontracting from internal contracting; Second, the legal effect of contracts, the consequences of their invalidation, and how to handle them; Third, the legal effect of management fee clauses and the consideration of actual investment; Fourth, who should bear the responsibility for project quality and payment arrears; Fifth, the settlement path for project payments, and whether the actual contractors can directly claim payment from the contractors.

III. Professional analysis by Henglue Lawyers

The first layer is to first determine whether there is a subcontracting relationship. Subcontracting usually manifests as the actual contractors bearing the risks and profits, organizing the construction and financing themselves, only using the qualifications and names of the subcontracted enterprises, and paying a management fee according to the agreement; while internal contracting involves a genuine labor or subordinate management relationship. The distinction between the two directly affects the contractual validity and the allocation of responsibilities, and requires a comprehensive judgment based on the sources of funds, personnel management, the use of seals, and the ownership of profits.

The second layer is to clarify the consequences of the contract being invalid. The construction contract signed by borrowing the qualification is invalid, but if the project has passed the acceptance, the borrowing enterprise may request a discounted compensation in accordance with the contract's provisions on the project price; the management fee clause, as part of the contract, usually does not generate an independent right of claim, so it's difficult for the borrowing enterprise to claim the management fee on this basis. If the borrowing enterprise has indeed made actual investments such as dispatching management personnel, providing technical guidance, and ensuring qualifications during the construction process, it may claim corresponding cost compensation, but this must be supported by evidence.

The third layer is that the settlement path is often more important than the dispute over management fees. If the actual contractors complete the project and pass the acceptance, they can claim discount compensation for their actual construction part; whether they can directly claim against the employer needs to be judged based on whether the employer owes the project payment and other conditions. When handling such disputes, Henglue Lawyers usually first sort out the project quantity and the acceptance status, then design the settlement and recovery path, focusing on the project payment that can be supported, rather than the management fee clauses with great disputes and weak evidence.

Fourthly, the risk warning cannot be ignored. Under the subcontracting relationship, the quality responsibility and the debt responsibility may be borne by both parties or jointly borne by both parties. The actual constructor may also bear adverse consequences due to subcontracting and illegal subcontracting. Therefore, whether it is the actual constructor or the subcontracted enterprise, they should pay attention to the preservation of the records of the construction process, so as to restore the true rights and obligations in the event of a dispute.

IV. Practical suggestions and legal basis

First, try to undertake projects through legal contracting methods to avoid borrowing qualifications. Second, under the circumstances of contracting out, keep records of capital investment, personnel organization, and the construction process. Third, claim depreciation compensation based on the completed project quantity and the acceptance status. Fourth, the claim for management fees must be based on actual investments, and avoid demanding payment solely based on contractual provisions. Fifth, for disputes involving quality or arrears, promptly assess the allocation of responsibilities. Main legal basis: The provisions of the Civil Code of the People's Republic of China on depreciation compensation after the contract is invalidated; the relevant provisions of the Interpretation of the Supreme People's Court on the Application of Law in the Trials of Construction Contract Disputes (I) regarding the borrowing of qualifications and the handling of invalid contracts; the specific application shall be subject to the currently effective provisions.

5. Henglu Law Firm's Reminder

Three key points about management fees in subcontracting: Contracts using borrowed qualifications are often invalid, and management fee clauses rarely receive full support; For those who have actually made investments, focus on the actual costs rather than just citing contract clauses; Place more emphasis on project quantities and depreciation compensation to increase the chances of success. For matters involving real estate sales and construction projects, you can seek assistance through legal channels.Real estate transactions and construction projectsThe service obtains a comprehensive solution, which involves the integration of contract terms and enterprise transactionsBusiness and contract disputes in enterprisesFor reference, you can check the section related to the enforcement of project paymentsCreditor's rights and debts, and enforcement casesFor the column, if you need a comprehensive solution, please feel free to consult usSpecial servicesTeam.

VI. Frequently Asked Questions

Q1: Will the court support the management fee agreed upon in the subcontracting arrangement?

Generally, it is not supported or considered within a reasonable scope. Construction contracts signed with borrowed qualifications are considered invalid, and the management fee clause loses its direct basis for claiming; if the subcontracted enterprise indeed has management input and qualification guarantees, it can claim corresponding cost compensation, but this must be supported by evidence.

Q2: What evidence should be prepared to support the claim for project payments?

It includes construction contracts and settlement documents, confirmation of project quantities and change orders, records of material delivery and acceptance, supervision signatures, correspondence and payment vouchers, as well as construction organization and capital investment records. The evidence should be able to determine the actual scope of construction and the completion status.

Q3: How much does it cost to hire a lawyer for this type of dispute?

The fees are subject to market regulation and are usually negotiated based on the subject matter and workload. Fees for appraisal of construction costs, preservation, and enforcement are charged separately. Fees increase correspondingly when the amount in dispute is large or the evidence is complex. It is recommended to clarify the scope of services and the charging method before signing the contract, and to list the expenses paid on behalf of the client separately.

Q4: How long does it take to resolve a subcontracting dispute?

The first-instance trial generally follows a simplified procedure that lasts three months and an ordinary procedure that lasts six months, while the second-instance trial typically lasts three months. The period for appraisals of construction costs or quality will be significantly extended. It is recommended to fix the evidence of the project quantity as soon as possible and apply for property preservation to prevent the transfer of funds.

Q5: Can the actual constructor directly ask the employer for money?

It's possible if the conditions are met. If the actual constructor completes the project and passes the acceptance, he/she can claim compensation in the form of a discount for the part of the work he/she has done; whether he/she can directly claim against the employer needs to be judged based on whether the employer owes the project payment and other conditions. It is recommended to determine the appropriate approach after having it assessed by a professional lawyer.

The above content is based on the judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglu Law Firm for specific cases.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Legal services for real estate transactions·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.