[Direct answer]In the Beijing area, the conclusion is that we should distinguish between main work and auxiliary work. In principle, the main work should not be delegated to others without authorization. According to Article 772 of the Civil Code of the People's Republic of China, the contractor shall complete the main work with his own equipment, technology and labor, unless otherwise agreed by the parties; if the contractor delegates the main work to a third party to complete, he shall be responsible to the employer for the work results completed by the third party; without the employer's consent, the employer may also terminate the contract. Article 773 stipulates that the contractor may delegate the auxiliary work to a third party and be responsible to the employer for the work results completed by the third party. Therefore, it is generally allowed to delegate auxiliary work to others, but if the main work is delegated without authorization, the contractor shall still be responsible for the results, and the employer may claim to terminate the contract and pursue breach of contract liability.

1. Problem background and typical scenarios

In contracting work, the contractor often assigns part of the work to others due to insufficient production capacity or cost considerations. Typical situations include: the contractor outsources the main processing links of the commissioned work in their entirety; assigns auxiliary processes to collaborating units; evades the contract by subcontracting or transferring the commission; and shifts blame to each other after quality problems arise. When the Beijing District Court handles such cases, it usually first determines whether the work transferred is main or auxiliary work, then examines whether the contractor has obtained the consent of the commissioning party, and based on this, determines whether the contractor has breached the contract and whether the commissioning party can terminate the contract.

II. Key points of contention

First, how to distinguish between main work and auxiliary work. Second, the legal consequences of transferring main work without consent. Third, who should bear the responsibility for the results after the transfer. Fourth, whether the client can terminate the contract and claim damages. Fifth, the effect and scope of the contract's provision allowing subcontracting. Sixth, the division of responsibility for quality issues after the transfer. Seventh, whether the contractor can defend himself on the grounds that the transfer does not affect the results. These issues determine the legality of subcontracting and the allocation of responsibilities.

III. Professional analysis by Henglue Lawyers

Based on Henglue Lawyer's practical experience in handling contracting and contract disputes, such issues should be addressed from four perspectives. Firstly, distinguishing the nature of the work: According to Article 772 of the Civil Code of the People's Republic of China, the main work should be completed by the contractor himself, typically referring to the core processes that constitute the subject of the contract; auxiliary work such as transportation and simple processing can be entrusted to others according to Article 773. Secondly, responsibility for the results: Whether the main work or auxiliary work is transferred, the contractor shall be responsible to the client for the work results completed by the third party, and the client may directly claim against the contractor for quality issues. Thirdly, consequences of unauthorized transfer: If the main work is transferred to a third party without the client's consent, in addition to assuming responsibility for the results, the client may terminate the contract and claim breach of contract liability. Fourthly, priority of agreement: If the contract explicitly permits subcontracting or designates a collaborator, such transfer within the scope of the contract generally does not constitute a breach of contract, but the contractor shall still be responsible for the results. Fifthly, key points of evidence: If the client claims unauthorized subcontracting, they should fix evidence such as the subcontract, delivery receipts, and production records; if the contractor claims it is auxiliary work, they should prove the nature of the process and its conformity with the contract terms. Sixthly, risk prevention: Both parties should clearly define the scope of transferable work, the qualifications of collaborators, and quality standards in the contract to reduce disputes.

IV. Practical suggestions and legal basis

Practical suggestions: First, the contract should clearly define the scope of the main work and auxiliary work and whether they can be transferred; Second, the contractor should obtain the client's written consent before transferring the work and stipulate the responsibilities of the collaborating parties; Third, after the transfer, the contractor should still strictly control the quality of the results and bear the responsibility for the results completed by third parties; Fourth, if the client discovers that the work has been unauthorizedly subcontracted, the client should fix the evidence and promptly claim the right to terminate the contract or claim breach of contract liability; Fifth, when quality problems occur, the client should directly claim against the contractor to avoid shirking responsibility; Sixth, if the collaborating parties are involved, the contractor may be required to provide qualifications and liability guarantees. For more details, please refer to the services on our platform.Business and contract disputes in enterprises、Creditor's rights and debts, and enforcement、Real estate transactions and construction projects、\nFinancial capital and cross-border transactions involving foreign entities.AndSpecial servicesLegal basis: Articles 772, 773, and 577 of the Civil Code of the People's Republic of China (all of which came into effect on January 1, 2021). The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Reminder

First, the contractor shall complete the main work with his own equipment, technology, and labor, and shall not entrust it to others without consent. Second, auxiliary work may be entrusted to third parties, but the contractor shall still be responsible for the results. Third, if the contractor unauthorizedly transfers the main work, the client may terminate the contract and pursue breach of contract liability. Fourth, if the contract expressly permits subcontracting, it generally does not constitute a breach of contract within the agreed scope. Fifth, in the event of quality issues, the client may directly claim against the contractor. Sixth, to claim unauthorized subcontracting, it is necessary to fix the transfer contract and delivery records, etc. as evidence. Seventh, subcontracting arrangements involve multiple parties' responsibilities, and it is recommended to clarify them in advance in the contract and consult professional opinions.

VI. Frequently Asked Questions

Q1: Is it legal for the contractor to transfer the work to others to do?

It is necessary to distinguish the nature of the work. According to Article 772 of the Civil Code of the People's Republic of China, the main work should generally be completed by the contractor himself. If the contractor transfers the work without the consent of the client, the client may terminate the contract. Article 773 stipulates that auxiliary work can be entrusted to a third party to complete. Whether it is legal or not depends on the nature of the work and the contractual provisions.

Q2: If there are quality issues after subcontracting, who should be held accountable for the compensation?

You can directly contact the contractor. According to Articles 772 and 773 of the Civil Code of the People's Republic of China, the contractor shall be responsible to the client for the work results completed by him or a third party. The client may claim repair, compensation or termination from the contractor for quality issues, without the need to pursue accountability from the collaborating third party on his own.

Q3: If the client does not agree with the subcontracting, can the contract be terminated?

Yes. If the principal contractor transfers the main work to a third party without the consent of the contractor, according to Article 772 of the Civil Code of the People's Republic of China, the contractor may terminate the contract and claim breach of contract liability. When making a claim, the contractor shall fix the transfer of the contract, production and delivery records, and other evidence, and clarify the transfer object and the nature of the work process.

Q4: Is outsourcing auxiliary work considered a breach of contract?

Generally, it is not allowed. According to Article 773 of the Civil Code of the People's Republic of China, the contractor may entrust a third party to complete the auxiliary work entrusted to him, and be responsible to the client for the results. However, if the contract expressly prohibits any transfer, or if the work is named as auxiliary but is actually the main work, it may constitute a breach of contract. It needs to be judged based on the contract and the nature of the work process.

Q5: If the contract stipulates that the work can be subcontracted, do I still need to be responsible for it?

The contractor is still responsible. Even if the contract stipulates that the work can be subcontracted, the contractor should still be responsible to the client for the work results completed by the third party, and cannot reduce or exempt his own obligations on the grounds of transferring the work. The client may claim against the contractor for quality issues, and the contractor may then seek compensation from the collaborating party in accordance with the agreement between them.

The above answer is based on the judicial practice in the Beijing area. The judicial interpretations in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situations.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence, to avoid missing the statutory time limit. →Corporate commercial legal services·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current 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.