问题 问答题

(四)

[背景资料]
某政府机关在城市繁华地段建一幢办公楼。在施工招标文件的附件中要求投标人具有垫资能力,并写明:投标人承诺垫资每增加500万元的,评标增加1分。某施工总承包单位中标后,因设计发生重大变化,需要重新办理审批手续。为了不影响按期开工,建设单位要求施工总承包单位按照设计单位修改后的草图先行开工。施工中发生了以下事件:
事件一:施工总承包单位的项目经理在开工后又担任了另一个工程的项目经理,于是项目经理委托执行经理代替其负责本工程的日常管理工作,建设单位对此提出异议。
事件二:施工总承包单位以包工包料的形式将全部结构工程分包给劳务公司。
事件三:在底板结构混凝土浇筑过程中,为了不影响工期,施工总承包单位在连夜施工的同时,向当地行政主管部门报送了夜间施工许可申请,并对附近居民进行公告。
事件四:为便于底板混凝土浇筑施工,基坑四周未设临边防护;由于现场架设灯具照明不够,工人从配电箱中接出220V电源,使用行灯照明进行施工。
为了分解垫资压力,施工总承包单位与劳务公司的分包合同中写明:建设单位向总包单位支付工程款后,总包单位才向分包单位付款,分包单位不得以此要求总包单位承担逾期付款的违约责任。
为了强化分包单位的质量安全责任,总分包双方还在补充协议中约定:分包单位出现质量安全问题,总包单位不承担任何法律责任,全部由分包单位自己承担。

分包合同条款能否规避施工总承包单位的付款责任说明理由。

答案

参考答案:

解析:分包合同条款不能规避施工总承包单位的付款责任。 理由:因为分包合同是由总承包单位与分包单位签订的,不涉及建设单位,总承包单位不能因建设单位未付工程款为由拒付分包单位的工程款。

单项选择题 B型题
问答题

Take me out to the ballgameIt is a strange coincidence that many popular sports played today with a ball, big or small, were first played in the latter half of the 19th century. Only cricket set its rules earlier, in 1788. Basketball was invented in 1891. Other sports had antecedents: soccer, rugby and American football were all formalised in the 1860s and 1870s from what appears to be a common origin, while baseball was standardised around that time, as was golf — though many Scots claim earlier origins. Tennis as we know it today was devised by Major Walter Clopton Wingfield, a British army officer, for the entertainment of guests at his country estate in 1873. Tennis, though, is an exception in that the indoor form of the game was played with formal rules in England and France at least as far back as 1600. But even this is recent compared with ulama, a game once played all over Mesoamerica, from the American Southwest to Peru.The oldest ulama court, in the Mexican state of Chiapas, was built around 1500BC, while latex balls used by the Olmecs, farther west, have been carbon-dated to 300 — 500 years earlier. This is not to say the rules of ulama have not changed over the years-ritual sacrifice of the losers is thought to have died out in the 1300s. But, says Manuel Aguilar, a professor at California State University, in Los Angeles, who studies the game, it is unique in having a continual recorded history stretching back almost 4 ,000 years.Dr. Aguilar and his colleague James Brady have been directing a group of students in Sinaloa, a state in western Mexico. They have started a comprehensive study of ulama de cadera, one of three forms of ulama surviving in Sinaloa, which is perhaps the only place where the once-widespread game is still played. Dr Aguilar speculates that this is because Sinaloa was a frontier during the time of the Spanish colonisation of the Americas, when ulama was largely eliminated by the intervention of Catholic missionaries who decried its pagan associations.Ulama is played on a long, narrow court, called a taste, which is 60 metres long and only four metres wide. The opposing sides, of five players each, take turns serving the four kilogram rubber ball and thereafter trying to move the ball up the field, hitting it only with the hip or upper thigh, which are protected by special garments. Points are scored if one team fails to return the other’’s serve across the halfway point of the taste, or if the serving team succeeds in getting the ball past the opponent’’s end line. The first team to score eight points wins.However, as Dr Aguilar and his colleagues point out in a series of papers forthcoming in the May issue of Estudios Jaliscienses, a Mexican journal, the rules of ulama are still today in flux, and often not even understood by the participants. This is why in a match each team brings a veedor, an elder who is meant to settle disputes over the rules.Dr. Aguilar, though, is less concerned with the details of the rules of the game, but with its social implications, both in Sinaloa today, and in Mesoamerica generally over the course of ulama’’s history. While Dr Brady is, by training, an anthropologist, and so directs the team’’s efforts to compile an ethnography of the present-day game, Dr Aguilar is an art historian. While this may seem an unorthodox pairing, it has allowed them to make some novel insights.For example, until their recent work, it was believed in academia that ulama was only played by men. However, in their detailed questioning of current players, they found that women play the game today, albeit as an exception, because female players are often stigmatized as being too macho. One of their informants is 94 years old and remembers female players from his youth, so the researchers are fairly certain that women have played throughout the 20th century. And Dr Aguilar’’s analysis of clay figurines, he says, indicates that women played routinely in pre-Columbian times, indeed as far back as 1200BC. This leads Dr Aguilar to speculate that women stopped playing only because of Spanish intervention, and resumed 100-200 years ago.Another concern of Dr Aguilar’’s is the balls used to play the game. He says synthetic rubber cannot be used, as there is a p tradition of using natural rubber. Because natural rubber is now scarce in Mexico, and the process of making a ball takes about 30 hours, the supply of balls is constraining the spread of the game. Indeed, to understand the process better, Dr Brady tried to make several balls together with his students. The process involved smearing hot latex on his hands and arms, allowing it to dry, and then peeling the strips off and wrapping them around the core of the ball until it reaches the requisite size and weight. The traditional process, says Dr Brady, is necessary to give the ball sufficient bounce.First-hand experience has caused Dr Brady to revise his understanding of the significance of tributes paid in the 16th century to the Aztec empire, when ulama balls were used as a de facto currency. Dr Brady thinks that the growing of rubber in the Aztec empire was probably much more extensive than had previously been thought, as was the production of balls, which may have served as the store of value for an entire economic system.Both Dr Brady and Dr Aguilar have tried to play ulama themselves, but Dr Aguilar says that, although some of his graduate students persevered for longer, the bruises he sustained from the heavy ball caused him quickly to abandon playing the game. The same, it seems, cannot be said of the inhabitants of Sinaloa.