Suggestions on reviewing the legality of the"Administrative Measures for the Identification,Investigation and Punishment of Illegal Acts in Construction Project Contracting and Contracting"issued by the Ministry of Housing and Urban-Rural Development:

Ministry of Justice:

The Ministry of Housing and Urban-Rural Development of the People's Republic of China(hereinafter referred to as the Ministry of Housing and Urban-Rural Development)issued the"Administrative Measures for the Determination,Investigation and Punishment of Illegal Acts in the Construction Contract Issuing and Contracting of Construction Projects"(hereinafter referred to as the"Measures for the Determination,Investigation and Punishment"or the"Measures")to the construction administrative departments of various provinces,autonomous regions,and municipalities directly under the Central Government on January 3,2019,which shall be implemented as of January 1,2019.The Administrative Measures for the Determination,Investigation and Punishment of Illegal Acts such as Subcontracting and Subcontracting in Construction Engineering(Trial)(hereinafter referred to as the original Trial Measures for the Determination,Investigation and Punishment),which came into effect on October 1,2014,shall be repealed simultaneously.

After the promulgation of the original"Trial Measures for Identification,Investigation and Punishment",I have carefully studied and believed that there are relatively serious issues with the legality and rationality of this document.On January 22,2015,I proposed in writing to the Ministry of Housing and Urban-Rural Development to review the legality of this document.The Ministry of Housing and Urban-Rural Development has also had comrades discuss with me over the phone.After the promulgation of the"Determination,Investigation and Punishment Measures",I have noticed that although the Ministry of Housing and Urban-Rural Development has made some modifications to the problems existing in the original"Determination,Investigation and Punishment Trial Measures",due to the fact that the formulation of this document does not adhere to the correct guiding principles and legal methods,many provisions of the"Determination,Investigation and Punishment Measures"still have no legal basis and violate the principle of legality.The document also has certain problems in the form of administrative norms and formulation techniques.

1、The partial determination of illegal acts such as construction subcontracting and illegal subcontracting in the"Determination and Investigation Measures"does not comply with the provisions of the"Construction Law"

The"Construction Law"does not define the concepts of illegal contracting,subcontracting,illegal subcontracting,and affiliation,but clearly stipulates the behaviors prohibited in construction.Article 78 of the Regulations on the Quality Management of Construction Projects defines the concepts of dismemberment,illegal subcontracting,and subcontracting.This is the legal and regulatory basis for identifying illegal construction activities.The Ministry of Housing and Urban-Rural Development has made efforts to seek breakthroughs in the identification of illegal acts from the original"Trial Measures for Identification,Investigation and Punishment"formulated in 2014 to the"Measures for Identification,Investigation and Punishment"issued in 2019,hoping to find a list of facts that can characterize construction illegal acts in addition to the identification standards stipulated by laws and administrative regulations,and then take the corresponding seats.However,both documents have not achieved this goal.The following is only an example of some clauses regarding subcontracting and affiliation.

1.Determination of subcontracting

Article 8 of the"Determination and Investigation Measures"stipulates that"one of the following circumstances shall be recognized as subcontracting",and a total of nine situations are listed.This clause stipulates that as long as one of the nine circumstances exists,it shall be deemed as subcontracting.Now,items 1,2,3,4,and 2 of the first paragraph are selected as samples for analysis.

The identification of illegal construction activities by construction administrative departments is the prerequisite for imposing administrative penalties and other administrative sanctions on construction enterprises.Once the violations are identified,they can be dealt with in accordance with the law.To determine that a certain construction activity of a construction enterprise constitutes an offence,it is necessary to fully comply with the constitutive requirements and essential characteristics of this illegal activity.The"Construction Law"has a prohibitive provision on subcontracting,which states,"It is prohibited for a contracting unit to subcontract all the construction projects it contracts to others,and it is prohibited for a contracting unit to dismember all the construction projects it contracts and then separately subcontract them to others in the name of subcontracting.".The common characteristic of these two prohibited behaviors is that the contractor subcontracts all the contracted projects to one or more people,which is the basis and standard for identifying subcontracting behaviors.

Article 8(1)of the"Identification and Investigation Measures"stipulates that"the contractor transfers all of its contracted projects to other units(including the case where the parent company undertakes construction projects and then transfers the contracted projects to a subsidiary with independent legal personality for construction)or individual construction";The second provision states that"the contractor dismembers all the projects it has contracted and then transfers them to other units or individuals for construction in the name of subcontracting."These two items are undoubtedly correct and comply with the standards for the recognition of subcontracting in the Construction Law and the Regulations on the Quality Management of Construction Projects.However,the special note in item(1)"(including the case where the parent company undertakes construction projects and hands them over to a subsidiary with independent legal personality for construction)"is completely redundant because the parent company and the subsidiary company are two independent legal entities,and under no circumstances can the subsidiary company be regarded as a branch of the parent company,which is a common sense issue in legal person theory and legal person system.

It is worth studying items 3 and 4 of Article 8 of the"Determination and Investigation Measures".The third item refers to"The construction general contractor or professional contractor has not assigned key management personnel such as project leader,technical leader,quality management leader,safety management leader,or one or more of the assigned project leader,technical leader,quality management leader,safety management leader has not entered into a labor contract with the construction unit and has not established a labor wage and social pension insurance relationship,or the assigned project leader has not established a labor wage and social pension insurance relationship with the construction unit.""The construction activities of the project are organized and managed,but reasonable explanations and corresponding certificates cannot be provided.";The fourth item refers to"the main construction materials,components,fittings,and engineering equipment that are contracted to be purchased by the contractor or the leased construction machinery and equipment are purchased or leased by other units or individuals,or the construction unit is unable to provide relevant procurement,lease contracts,invoices,and other certificates,and is unable to provide reasonable explanations and provide corresponding certificates.".

Items 3 and 4 of Article 8 of the"Determination and Investigation Measures"continue the errors of the original"Determination and Investigation Trial Measures".The situations listed in these two items are not related to subcontracting.For example,one or more of the key management personnel referred to in item(3)has not entered into a labor contract with the construction unit and has not established a labor wage and social pension insurance relationship.This phenomenon occurs frequently in any construction enterprise,any construction type of project management team,and has no inevitable connection with whether the project is subcontracted.The absence of a labor relationship between the management personnel of the Project Department and the construction enterprise may be a situation or phenomenon in the subcontracting process,or a clue or suspicion in determining the subcontracting.However,it is groundless to identify the project as"subcontracted"based solely on the evidence that one or more people have not entered into a labor contract with the construction unit and have not established a labor wage and social pension insurance relationship.Logically,this is a false syllogism.Although the construction management personnel of subcontracting and affiliated units often do not have a labor relationship with the general contracting unit,it is clearly illogical to assume that any situation where the construction management personnel(even if there is more than one person)do not have a labor relationship with the general contracting unit is a subcontracting relationship.On August 4,2014,the Ministry of Housing and Urban-Rural Development formulated and promulgated the original"Trial Measures for Identification,Investigation and Punishment",and launched a two-year project quality control action nationwide from September of that year to severely crack down on illegal activities such as subcontracting and affiliation.During that period,many construction enterprises were suspected of subcontracting,illegal subcontracting,or affiliation,and suddenly transferred the labor relations of management personnel to general contracting units.At one time,there was a trend of transferring labor relations in many parts of the country.The current situation is that some enterprises that engage in illegal construction activities,in order to avoid illegal construction,will first transfer the labor relations of relevant management personnel to the contracting enterprise.In fact,illegal construction activities do not change their illegality simply because of changes in the labor relations of management personnel.

In the fourth item,"the main construction materials,components,and engineering equipment that are contracted to be purchased by the contractor or the construction machinery and equipment that are leased shall be purchased or leased by other units or individuals"is regarded as one of the"recognized subcontracts",which is also unreasonable and has no legal basis.A construction enterprise entrusts others to purchase(or implement)construction materials and equipment for itself,which is the enterprise's operational autonomy.Laws and regulations do not prohibit such behavior,and they do not violate the contract provisions.The so-called"contract stipulates that the main construction materials,components,and engineering equipment to be purchased by the contractor or leased construction machinery and equipment"is known to those who have a little knowledge of the construction industry.In construction contracts,This agreement is relative to"Party A supplied materials",which means that except for"Party A supplied materials",other building materials shall be purchased by the contractor himself.Self procurement naturally includes various forms such as self procurement and entrusted procurement."Using the evidence that building materials are purchased or leased by other units or individuals as evidence to determine that subcontracting is indeed unreasonable.".

Article 8(2)stipulates that"If two or more units form a consortium to contract a project,and it is agreed in the consortium division agreement or during the actual implementation of the project,one party of the consortium neither conducts construction nor organizes and manages the construction activities,and collects management fees or other similar fees from other parties of the consortium,it shall be deemed that one party of the consortium subcontracts the contracted project to the other parties of the consortium.",There is no legal basis for listing this act as subcontracting.Article 31 of the Bidding Law stipulates that"two or more legal persons or other organizations may form a consortium and jointly submit bids as one bidder",and specifies the obligations and responsibilities of each party to the consortium.However,after the consortium wins the bid,whether the situation referred to in Article 8,Paragraph 2,of the"Determination and Investigation Measures"belongs to subcontracting is not stipulated in the"Bidding Law"or the"Regulations for the Implementation of the Bidding Law",nor is administrative sanctions imposed as illegal acts in the"Legal Responsibility"chapter.According to Article 31 of the Bidding Law"A consortium composed of units in the same discipline shall determine the qualification level based on the units with lower qualification levels.Each party to the consortium shall sign a joint bidding agreement that clearly specifies the work and responsibilities to be undertaken by each party,and submit the joint bidding agreement to the tenderee together with the bidding documents.If the consortium wins the bid,each party to the consortium shall jointly sign a contract with the tenderee and bear joint and several liabilities to the tenderee for the winning project.",The construction administrative department shall implement this principle stipulated in the Bidding Law when dealing with the acts specified in Article 8,paragraph 2,of the"Identification and Investigation Measures".

2.Recognition of affiliation

The"Identification and Investigation Measures"defines affiliation,and Article 9 states:"The term affiliation as used in these Measures refers to the act of a unit or individual contracting a project in the name of another qualified construction unit.".Article 10 stipulates that"under any of the following circumstances,it is affiliated:(1)a unit or individual without qualifications that borrows the qualifications of another construction unit to contract projects;(2)qualified construction units that borrow qualifications from each other to contract projects,including those with low qualification levels,those with high qualification levels,those with low qualification levels,and those with the same qualification levels that borrow from each other;and(3)Paragraph 1(3)of Article 8 of these Measures.""There is evidence to prove that it is affiliated under the circumstances specified in items(9).".Here are two issues to discuss.

First,the definition of affiliation in the"Determination and Investigation Measures"is incomplete and inaccurate.Article 26 of the Construction Law stipulates that"construction enterprises are prohibited from exceeding the scope of business permitted by their qualification levels or from 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 contract projects in the name of their own enterprises.".This clause reveals the two illegal subjects(also responsible subjects)who are affiliated and the two illegal acts they have committed.One is the affiliated person who contracts projects in the name of other construction enterprises;The other is an affiliated person who allows other units or individuals to use their own qualification certificates and business licenses to contract projects in their own name.This means that the definition of affiliation should include two actors and two illegal acts.Therefore,the"Identification and Investigation Measures"only refers to the"acts of units or individuals contracting projects in the name of other qualified construction units",and only includes the illegal acts of the affiliated person,not the illegal acts of the affiliated person.As for the three illegal behaviors of illegal contract awarding,subcontracting,and illegal subcontracting,they are different from affiliations.In terms of the topic,their illegal behavior subjects are one,such as illegal contract awarding,whose behavior subjects refer to the construction party(the contract awarding party).There is no contract awarding for the construction party,and its definition only refers to the contract awarding party.The same is true for subcontracting and illegal subcontracting,as long as it is mentioned who subcontracts,who subcontracts.It is precisely for this reason that the"Construction Law"on the prohibition of affiliated acts refers to two main actors and two illegal acts of affiliated persons and affiliated persons,while the"Construction Project Quality Management Regulations"only refers to one illegal subject(the employer,subcontractor,subcontractor)and its illegal acts when defining dismembered contract awarding,illegal subcontracting,and subcontracting.As for the counterparties of the three illegal subjects of contract awarding,subcontracting,and subcontracting(the contractor,the accepting subcontractor,and the accepting subcontractor),they do not necessarily constitute violations and must bear legal responsibilities.This should be recognized and investigated in accordance with the specific circumstances and the provisions of laws and regulations.

Secondly,the"Determination and Investigation Measures"stipulate three situations for determining affiliation behavior,among which,the third item has been analyzed by the proponent during the research on the determination of subcontracting and will not be repeated.

Illegal contracting,subcontracting,illegal subcontracting,and affiliation of construction projects are common problems in the construction market,and have certain concealment and complexity.As mentioned earlier,the identification criteria set forth in the"Identification and Investigation Measures"for various illegal construction activities cannot summarize the essential characteristics of illegal activities.Facts have shown that if only one of the following circumstances can be identified as illegal,it would simplify complex legal issues.For the illegality of construction activities,it is necessary to conduct an actual investigation of various characteristics and manifestations of project construction activities in accordance with the provisions of laws and regulations,and determine them based on a comprehensive analysis of a series of situations and evidence.The identification of illegal construction activities should comply with the requirements of"conclusive evidence,correct application of laws and regulations,and compliance with legal procedures"stipulated in the Administrative Procedure Law,otherwise,administrative activities may be illegal.

2、The provisions of the Measures for the Investigation and Determination of Legal Liability of Construction Enterprises that Commit Illegal Acts contravene the provisions of laws and administrative regulations,or belong to the unauthorized setting of obligations and responsibilities on enterprises

When the Ministry of Housing and Urban-Rural Development revised the original trial measures,it made adjustments to some of the provisions of the original administrative penalty,but there are still problems with the legality of some provisions,such as:

Article 15(5)stipulates that"If a construction unit or a construction unit is fined,the directly responsible person in charge and other directly responsible personnel of the unit shall be punished in accordance with Article 73 of the Regulations on the Quality Management of Construction Projects,Article 49 of the Bidding Law of the People's Republic of China,and Article 64 of the Regulations on the Implementation of the Bidding Law of the People's Republic of China.",This item does not comply with the provisions of relevant laws and administrative regulations.

Article 73 of the Regulations on the Quality Management of Construction Projects stipulates:"If a unit is fined in accordance with the provisions of these Regulations,the directly responsible person in charge and other directly responsible persons of the unit shall be fined not less than 5%but not more than 10%of the fine imposed by the unit.".

Article 49 of the Bidding Law stipulates that:"If,in violation of the provisions of this Law,a project that must be subject to bidding is not subject to bidding,the project that must be subject to bidding is divided into parts,or any other means of evading bidding is used,it shall be ordered to make corrections within a time limit,and a fine of not less than 0.5%but not more than 10%of the project contract amount may be imposed.For projects that use wholly or partially state-owned funds,the project execution or fund allocation may be suspended.The directly responsible executives and other directly responsible personnel of the unit may be suspended"The responsible person shall be punished in accordance with the law."Article 64 of the Regulations for the Implementation of the Bidding Law of the People's Republic of China stipulates that if a tenderer falls into one of four categories,"the relevant administrative supervision department shall order it to make corrections and may impose a fine of not more than 100000 yuan.","If a tenderer commits any of the acts listed in Items 1,3,and 4 of the preceding paragraph,the directly responsible person in charge and other directly responsible personnel of the unit shall be punished in accordance with the law.".

From this,it can be seen that Article 15(5)of the"Measures for Identification,Investigation and Punishment"stipulates that"if a construction unit or a construction unit is subject to a fine,"in accordance with Article 73 of the"Regulations on the Quality Management of Construction Projects",the directly responsible person in charge of the unit and other directly responsible persons are subject to a fine of not less than 5%but not more than 10%of the fine amount of the unit.There is nothing wrong with this.However,according to Article 49 of the"Bidding Law"and Article 64 of the"Regulations for the Implementation of the Bidding Law",the directly responsible executives and other directly responsible personnel of the unit should not be"punished",but"punished according to law.".There is a difference between punishment and punishment.According to the common understanding,administrative punishment is directed against internal staff of administrative organs,while administrative punishment is directed against administrative management counterparts.There are also cases of disciplinary actions against administrative counterparties(such as the employer and contractor referred to in this article).Disposition means disposal.When the meaning of punishment is similar to that of sanctions,punishment is also one of the sanctions,but not all sanctions are imposed by means of punishment.Therefore,Item(5)of Article 15 stipulates that"the directly responsible executives and other directly responsible personnel of the unit shall be punished",which is inconsistent with the provisions of the Bidding Law and the Regulations for the Implementation of the Bidding Law.

Article 15(5)of the"Determination and Investigation Measures"not only confuses the concept of punishment and punishment,but also makes a mistake,"If a construction unit or a construction unit is fined,the directly responsible person in charge and other directly responsible personnel of the unit shall be punished in accordance with Article 73 of the Regulations on the Quality Management of Construction Projects,Article 49 of the Bidding Law of the People's Republic of China,and Article 64 of the Implementation Regulations of the Bidding Law of the People's Republic of China.","Any provision in the"Identification,Investigation and Punishment Measures"that"impose fines on the construction unit and the construction unit"is a condition for"imposing penalties on the directly responsible executives and other directly responsible personnel of the unit".".The"Identification and Investigation Measures"not only impose penalties on construction units and construction units in accordance with Article 73 of the"Regulations on the Quality Management of Construction Projects",Article 49 of the"Bidding Law",and Article 64 of the"Regulations on the Implementation of the Bidding Law",but also in accordance with Articles 65,66,and 67 of the"Construction Law",Article 54,55,and 60 of the"Regulations on the Quality Management of Construction Projects""Article 61 and Article 62 impose penalties,while these eight provisions only provide for the imposition of fines on the unit,and do not provide for the imposition of penalties on the directly responsible executives and other directly responsible personnel of the unit.Therefore,the""Identification and Investigation Measures""clearly expands the scope of accountability for the directly responsible executives and other directly responsible personnel of the unit,and uses penalties to replace other forms of sanctions that should be imposed according to law.",Violation of the principle of statutory punishment.

Item(5)of Article 15 of the"Determination and Investigation Measures"should be amended as follows:

"If a construction unit or construction unit is fined in accordance with Article 73 of the Regulations on the Quality Management of Construction Projects,the directly responsible person in charge and other directly responsible personnel of the unit shall be fined not less than 5%but not more than 10%of the fine imposed by the unit.In accordance with Article 49 of the Bidding Law of the People's Republic of China and the Regulations for the Implementation of the Bidding Law of the People's Republic of China,""Where a fine is imposed in accordance with Article 64,the person in charge and other persons directly responsible of the unit shall be punished in accordance with the law.".

Article 15(6)stipulates that"construction units that are identified as having illegal activities such as subcontracting,illegal subcontracting,affiliation,transfer and lending of qualification certificates,or otherwise allowing others to contract projects in their own name may be restricted from participating in project bidding activities or contracting new projects in accordance with the law.","A construction unit that has subcontracted,illegally subcontracted,affiliated,transferred or lent its qualification certificate twice or more within two years,or otherwise allowed others to contract projects in its own name,shall be punished according to the seriousness of the circumstances in accordance with the law.".There is no basis for these two provisions in relevant laws and administrative regulations.According to the provisions of Article 1,Paragraph 1,of the Notice of the General Office of the State Council on Strengthening the Formulation,Supervision,and Management of Administrative Normative Documents,the"Determination and Investigation Measures",as an administrative normative document formulated by the Ministry of Housing and Urban-Rural Development,"shall not illegally derogate from the legitimate rights and interests of citizens,legal persons,and other organizations or increase their obligations.".

Article 15(7)stipulates that"If a quality and safety accident occurs due to illegal acts such as contract awarding,subcontracting,illegal subcontracting,or affiliation,it shall be punished according to the seriousness of the circumstances in accordance with the law.".This provision has no legal basis.

3、The"Determination and Investigation Measures"do not strictly follow the basic principles and requirements formulated in normative documents

After studying the"Determination and Investigation Measures",it is not difficult to find that the guiding ideology and purpose of this document issued by the Ministry of Housing and Urban-Rural Development is to identify and investigate illegal construction activities,and implement administrative penalties or other administrative sanctions.The entire document violates the basic principles and requirements of the formulation of administrative normative documents in many places,and there are also many problems in the technical level of document formulation.

The document does not specify the principles for identifying and investigating illegal construction activities.This document involves the huge construction market in the country,and concerns the rights,obligations,and responsibilities of thousands of construction units and construction enterprises.It is a very important and serious work in the management of the construction market.The Ministry of Housing and Urban-Rural Development should formulate this document to clarify the basic principles for identifying and investigating illegal acts,but the document has not standardized the basic principles from beginning to end.

As a normative document dedicated to the identification and investigation of illegal construction activities,there is no design or description of the legal procedures for specific administrative actions,let alone the way to inform the administrative counterpart of legal remedies.

There are certain problems in the language and logic of formulating technical and expression specifications in the"Identification and Investigation Measures".For example:

(1)The basis for the formulation of the"Determination and Investigation Measures"document is not standardized in terms of expression.Article 1 of this document states that the basis for formulating this document is"the Construction Law of the People's Republic of China,the Bidding Law of the People's Republic of China,the Contract Law of the People's Republic of China,the Regulations on the Quality Management of Construction Projects,the Regulations on the Administration of Safe Production of Construction Projects,the Regulations on the Implementation of the Bidding Law of the People's Republic of China,"and other laws and regulations"Opinions of the National People's Congress and the Legal Working Committee on Whether Subcontracting and the Determination of the Legal Applicability of Administrative Penalties to Subsidiaries after the Construction Enterprise's Parent Company Undertakes the Project"(FGBF[2017]No.223).This document is formulated on the basis of three laws,three administrative regulations,and a normative document from the Legal Working Committee of the National People's Congress,in accordance with the regulatory requirements,The formulation basis should highlight the main laws or regulations,and it is not necessary to include all the laws and administrative regulations cited and based in the document.The reply of the Legislative Working Committee of the National People's Congress(FGBF[2017]No.223)is correct,but it is unnecessary and inappropriate to include the reply of the Legislative Working Committee of the National People's Congress in the"basis".

(2)In this document,the division of labor between clauses is unclear,and mutual dislocation often occurs.For example,there are three paragraphs in Article 3,which are"The Ministry of Housing and Urban-Rural Development implements unified supervision and management of the identification and investigation of illegal acts in the contracting and contracting of construction projects nationwide",and"The competent housing and urban-rural construction departments of local people's governments at or above the county level are specifically responsible for the identification and investigation of illegal acts in the contracting and contracting of construction projects within their respective administrative areas within their scope of responsibility.","The illegal acts of contract awarding and contracting referred to in these Measures specifically refer to illegal acts of contract awarding,subcontracting,illegal subcontracting,and affiliation."Paragraph 3 defines the concept,which is obviously inappropriate to include in Article 3 and should be included in Paragraph 2 of Article 2.The function of Article 2 is to define the main concepts of the document,and Paragraph 1 defines the illegal acts of contract awarding and contracting referred to in these Measures.".

(3)The expression of some clauses is not rigorous enough and does not conform to logic.For example,Article 8 lists one of nine situations as the criteria for determining subcontracting,but does not follow certain logical rules in the arrangement.The fifth term refers to"the scope of contracting by a professional operation contractor refers to all the projects contracted by the contractor,and the professional operation contractor calculates all the project prices except for the"management fees"paid to the contractor."This situation is a form of"the contractor transfers all the projects contracted by it to other units"referred to in the first term of this article.From the perspective of the extension of the concept,it is a subordinate relationship with the first term,It should not be juxtaposed with the first item.Similar issues arise in many provisions of the"Determination and Investigation Measures".

(4)The language used in some clauses of the document does not meet the requirements of"specific,clear,accurate,and rigorous".For example:

①Article 1 stipulates that the purpose of this document is to"maintain the order of the construction market and the legitimate rights and interests of the main participants in construction projects."The use of the term"main participants"is obviously inappropriate,and the rights and interests of other parties should also be safeguarded,not just the interests of the main participants.It should be changed to"maintain the legitimate rights and interests of the Employer,the Contractor,and other entities of the construction project".

②The third item of Article 8 refers to"the construction general contractor or professional contractor has not dispatched key management personnel such as project leader,technical leader,quality management leader,safety management leader,or one or more of the dispatched project leader,technical leader,quality management leader,safety management leader has not entered into a labor contract with the construction unit and has not established a labor wage and social endowment insurance relationship","And the construction unit"refers to the general construction contractor or professional contractor,or refers to the actual construction unit subcontracted to?The concept is ambiguous and can easily lead to ambiguity.

③Article 8(7)refers to"the contracting unit of a professional project is not the general contractor or professional contractor of the project,except for the construction unit as the contracting unit according to the contract",and item 8 refers to"the contracting unit of a professional operation is not the contracting unit of the project".The meaning of these two tables is ambiguous and difficult to understand.

④Article 18 stipulates that"professional projects other than housing construction and municipal infrastructure projects may be implemented with reference to these Measures.The competent housing and urban and rural construction departments of the provincial people's government may formulate corresponding implementation rules in accordance with these Measures in combination with local realities."Try to ask:Authorize the competent housing and urban and rural construction departments of the provincial people's government to formulate corresponding implementation rules in accordance with these Measures,Does it refer to the implementation rules of the Administrative Measures for the Identification,Investigation and Punishment of Illegal Behaviors in Construction Contract Issuing and Contracting,or the"Implementation Rules for the Identification,Investigation and Punishment of Illegal Behaviors in Professional Engineering Construction Contract Issuing and Contracting"?It is difficult for people to judge and even more difficult to implement.

In summary,there are some issues that cannot be ignored in the"Determination and Investigation Measures"of the Ministry of Housing and Urban-Rural Development in terms of legality,rationality,and formulation technology.If not corrected in a timely manner,it will have adverse effects,not conducive to the construction of a government ruled by law,but also conducive to the rapid,sustainable,and healthy development of the construction industry in the new normal.

In view of this,the applicant,as a citizen,based on his concern for the government's rule of law and the development of the construction industry,hereby complies with the provisions of the"Legislative Law",the"Regulations on the Procedures for Formulating Regulations"of the State Council,and the"Notice on Strengthening the Formulation,Supervision,and Administration of Administrative Normative Documents"issued by the General Office of the State Council,It is recommended that the State Council review the legality of the administrative normative document of the Ministry of Housing and Urban-Rural Development of the People's Republic of China,"Administrative Measures for the Identification,Investigation and Punishment of Illegal Acts in Construction Contract Issuing and Contracting".

If the above suggestions are inappropriate,please correct them.

We look forward to your reply and the results of the review.thank you!

(This article is translated by software translator for reference only.)