《Construction Engineering Compliance Manual》——Safety Production (Part 2)

Due to the market chaos in the field of construction engineering, the construction process is complicated, the period is long, the mobility of workers is large, and the risk is greater in the construction process, resulting in the construction industry is an industry with a high incidence of safety accidents, so the safety production of construction projects has always been the focus of government supervision and enterprise concern. This paper selects eight topics from the safety production of construction projects for analysis, hoping to alert the participants of construction projects in terms of safety compliance. This article is selected from the 《Construction Engineering Compliance Manual》of Dehe Shanghai Construction Engineering and Infrastructure Business Committee, this article is the next part, to share with you.

01、Security check

Concept and compliance objectives

Construction project safety production situation is dynamic development, today's compliance, does not mean that there will not be problems tomorrow. The purpose of inspection is to discover hidden safety hazards in time, carry out rectification, so as to eliminate the risk of safety accidents as much as possible, so that the construction site safety production situation is under control.

Common forms of legal risk

1. Safety inspection is only a formality, and no dangerous projects are carried out.

2. Check the site, light management data.

3. If the violation is not accurately characterized, it will be disposed of after inspection.

4. Failure to review key parts in time after inspection.

Adverse consequence

Article 134 of the Criminal Law whoever, in violation of the relevant provisions on safety management in production or operation, falls under any of the following circumstances and is in real danger of a major casualty accident or other serious consequences shall be sentenced to fixed-term imprisonment of not more than one year, criminal detention or public surveillance:

...

Where a person is ordered according to law to stop production or business operation, stop construction, stop using relevant equipment, facilities or sites, or immediately take rectification measures to eliminate the danger, but refuses to carry out such order;

If there is a hidden accident at the construction site and the law enforcement department makes a stoppage order according to law, but the construction site refuses to implement it, it may constitute a crime of dangerous operation under certain circumstances. Upon receiving an order for rectification or suspension of work, the construction unit shall attach great importance to it and execute it immediately. If the government's administrative actions are found to be wrong, they can be explained in an appropriate manner. Never turn a deaf ear to avoid being drawn into criminal liability.

Compliance suggestion

1. Check standards

It includes the laws, regulations and rules related to the safe production of construction projects, and also includes a large number of technical specifications and standards related to safe production, some are national standards, and some are industry standards. A series of national standards recently issued by the housing and construction department are all mandatory provisions and must be strictly implemented. This reflects a trend that the country's norms in the field of construction engineering are becoming more and more stringent. For example, when lifting operations, temporary fixed measures should be taken for parts that have not formed a stable system. For the temporary fixed members, the temporary fixed measures can only be lifted after the installation and fixing is completed and the inspection is confirmed. According to this clause, temporary fixing measures are very important when the system is not stabilized during the lifting operation and must be removed after the installation is fixed in place.

In addition, enterprise standards and construction contracts can also set standards more stringent than the above specifications, as long as they do not conflict with mandatory provisions, and are equally valid.

2. Self-inspection by the construction unit

The construction unit and the project department must conduct self-inspection and self-correction in accordance with the inspection standards. According to Article 21 of the Regulations on the Administration of Safe Production of Construction Projects, the principal person in charge of the construction unit shall be fully responsible for the work of safe production of the unit according to law. The construction unit shall establish and improve the safety production responsibility system and safety production education and training system, formulate safety production rules and regulations and operating procedures, ensure the investment of funds required for the safety production conditions of the unit, carry out regular and special safety inspections of the construction project undertaken, and make safety inspection records. Self-inspection is the legal obligation of the construction unit, the construction unit should establish a safety inspection system, complete the safety inspection records, the rectification of the hidden danger of the accident should be fixed, fixed time and fixed measures, and the items listed in the rectification notice of major accident hidden danger should be rectified and reviewed on schedule.

3. Supervision inspection

Construction industry as a relatively high-risk industry, dangerous projects have always been the difficulty of safety supervision, but also one of the key work of supervision. The supervisor must fulfill the responsibility and leave traces in the supervision work of crisis. Perform work safety supervision duties according to laws and regulations and mandatory construction standards. Examine the special construction plan submitted by the construction unit for approval, involving more than a certain scale of dangerous sub-projects, check the construction unit organized expert demonstration and review and whether the safety calculation results are attached, and supervise the construction unit in strict accordance with the approved plan construction. If a hidden danger of safety accident is found in a project, it shall be disposed of according to the provisions of the Regulations on the Administration of Construction Project Safety Production.

The project supervision unit shall examine whether the safety technical measures or special construction plans in the construction organization design meet the mandatory standards for project construction. In the process of implementation of supervision, the project supervision unit finds that there is a hidden danger of safety accidents, shall require the construction unit to rectify; If the situation is serious, the construction unit shall be required to temporarily stop the construction and report to the construction unit in a timely manner. If the construction unit refuses to rectify or stop the construction, the project supervision unit shall report to the relevant competent department in a timely manner. Supervisors, supervision management also. When a safety accident is found, it is of course the responsibility to request rectification until extraordinary measures such as stoppage are taken. If the problem is still not solved after reporting to the client (construction unit), it shall be reported to the competent government department for the consideration of social and public interests. If the supervision unit performs the above duties according to law, it shall be exempt from liability.

Supervision emergency report refers to the construction site quality and safety problems, the supervision unit issued a rectification notice or project suspension order, the construction unit refuses to correct or stop the construction, or the construction unit refuses to accept, may have serious consequences, the supervision unit shall promptly submit the supervision report to the construction administrative department or other relevant departments. According to Article 14 of the Regulations on the Administration of Construction Project Safety, as a construction unit, attention should be paid to the supervision unit, which does not have the power to enforce the rectification notice or the instruction of project suspension, but has the obligation to finally report to the relevant government departments. There is a civil legal relationship between the supervision unit and the construction unit, and they have no coercive power. However, production safety involves social public interests, and when the supervision unit reports to the state public authority according to law, it will be transformed into an administrative legal relationship or even a criminal legal relationship.

4. Government supervision and inspection

The departments of the people's governments at or above the county level responsible for the supervision and administration of work safety in construction projects shall have the right to take the following measures when performing their duties of supervision and inspection of work safety within the scope of their respective duties:

(1) require the inspected units to provide documents and materials related to construction project safety production;

(2) Enter the construction site of the inspected unit for inspection;

(3) to correct violations of production safety requirements during construction;

(4) the hidden dangers of safety accidents found in the inspection shall be ordered to be immediately eliminated; Where safety cannot be ensured before or during the elimination of potential hazards of major safety accidents, the operator shall be ordered to withdraw from the dangerous area or temporarily stop construction. Construction units must cooperate with government regulatory agencies to supervise and inspect the safety of construction projects.

02、Security incidents

Concept and compliance objectives

Safety accidents refer to accidents that occur suddenly in production and business activities (including activities related to production and business activities), injure personal safety and health, damage equipment and facilities, or cause economic losses, and lead to the temporary suspension or permanent termination of the original production and business activities (including activities related to production and business activities). In the field of construction engineering, the reason why laws, regulations and technical specifications are formulated and strictly implemented is to try our best to reduce the occurrence of accidents and reduce the losses caused by accidents.

Common forms of legal risk

1. Delaying or underreporting an accident.

2. Failure to conduct a comprehensive and objective accident investigation.

3. Failure to seriously deal with persons responsible for accidents in accordance with laws and regulations.

4. No improvement measures have been taken.

5. Those who refuse to accept the approval of the accident do not know the means of relief.

Adverse consequence

The relevant organ shall, in accordance with the approval of the people's government and within the limits of authority and procedures prescribed by laws and administrative regulations, impose administrative penalties on the unit where the accident occurred and the relevant personnel, and impose sanctions on the state functionaries responsible for the accident.

The unit where an accident occurs shall, in accordance with the approval of the people's government responsible for the accident investigation, deal with the personnel who are responsible for the accident in the unit. If the person responsible for the accident is suspected of committing a crime, he shall be investigated for criminal responsibility according to law.

Compliance suggestion

1. Accident classification

According to relevant laws and regulations, the casualties or direct economic losses caused by production safety accidents (hereinafter referred to as accidents) are generally divided into the following grades:

(1) Particularly serious accidents refer to accidents that cause more than 30 deaths, or more than 100 serious injuries (including acute industrial poisoning, the same below), or direct economic losses of more than 100 million yuan;

(2) A major accident refers to an accident that causes the death of more than 10 people and less than 30 people, or serious injuries of more than 50 people and less than 100 people, or direct economic losses of more than 50 million yuan and less than 100 million yuan;

(3) A major accident refers to an accident resulting in the death of more than 3 people and less than 10 people, or serious injury of more than 10 people and less than 50 people, or direct economic losses of more than 10 million yuan and less than 50 million yuan;

(4) An ordinary accident refers to an accident that causes the death of less than 3 people, or serious injury of less than 10 people, or direct economic losses of less than 10 million yuan.

The department of production safety supervision and administration under The State Council may, in conjunction with the relevant departments under The State Council, formulate supplementary provisions on the classification of accident levels. The term “above” includes this number, and the term “below” does not include this number.

Accident classification is divided according to the casualties and property losses caused by the accident, and its significance is to determine the level of accident investigation. The State Council or relevant departments authorized by The State Council shall organize an accident investigation team to conduct an investigation into a particularly serious accident. Major accidents, major accidents and ordinary accidents shall be investigated by the people's government at the provincial level, the people's government at the city divided into districts and the people's government at the county level respectively. The people's government at the provincial level, the people's government at the municipal level divided into districts and the people's government at the county level may directly organize an accident investigation team to conduct an investigation, and may also authorize or entrust relevant departments to organize an accident investigation team to conduct an investigation. For ordinary accidents that do not result in casualties, the people's government at the county level may also entrust the unit where the accident occurred to organize an accident investigation team to conduct an investigation. Taking the death toll as an example, a particularly serious accident of more than 30 shall be investigated by The State Council; If more than 10 persons are involved in a major accident, they shall be investigated by the provincial government; Accidents involving more than 3 persons shall be investigated by the municipal government of a districted city; Accidents of less than 3 persons are normal and are investigated by the county government.

2. Accident investigation

The composition of the accident investigation team should follow the principle of simplification and efficiency. According to the specific circumstances of the accident, the accident investigation team shall be composed of people's governments concerned, production safety supervision and administration departments, relevant departments responsible for production safety supervision and administration, supervisory organs, public security organs and trade unions, and shall invite people's procuratorates to participate. The accident investigation team may engage relevant experts to participate in the investigation. The members of the accident investigation team should have the knowledge and expertise required for the accident investigation and have no direct interest in the accident under investigation. The head of the accident investigation team shall be designated by the people's government responsible for the accident investigation. The head of the accident investigation team presides over the work of the accident investigation team.

The accident investigation team shall perform the following duties:

(1) To find out the course, cause, casualties and direct economic losses of the accident;

(2) Determining the nature and responsibility of the accident;

(3) To put forward suggestions on the handling of those responsible for the accident;

(4) Summarize the lessons of the accident and put forward prevention and rectification measures;

(5) Submit an accident investigation report.

The accident investigation team shall have the right to obtain information related to the accident from the relevant units and individuals, and request them to provide relevant documents and materials, and the relevant units and individuals shall not refuse.

Where a suspected crime is found in the accident investigation, the accident investigation team shall promptly transfer the relevant materials or their copies to the judicial organs for handling. If it is necessary to conduct technical appraisal in the investigation of an accident, the accident investigation team shall entrust a unit with the qualifications prescribed by the State to conduct technical appraisal. If necessary, the accident investigation team may directly organize experts to carry out technical appraisal. The time required for technical appraisal is not included in the period of accident investigation.

The accident investigation report shall include the following contents:

Overview of the unit where the accident occurred;

The occurrence of the accident and the rescue situation;

Casualties and direct economic losses caused by accidents;

The cause and nature of the accident;

The identification of accident liability and the handling suggestions for those responsible for the accident;

Accident prevention and rectification measures.

The accident investigation report shall be attached with relevant evidentiary materials, and the members of the accident investigation team shall sign the accident investigation report.

3. Remedies for accident investigation and treatment

The person under investigation may not accept the approval of the people's government and bring an administrative lawsuit to the court according to law, which is an important right of action. The people's government in charge of the accident investigation shall give an approval to the accident investigation report, and then the relevant authorities shall, in accordance with the approval of the people's government and within the limits of authority and procedures prescribed by laws and administrative regulations, impose administrative penalties on the unit where the accident occurred and the relevant personnel. The defendant exercised the legal authority to make the approval of the accident investigation report in accordance with the law, and identified the accident liability in the content, and this identification has a public and binding force, and has an adverse impact on the legitimate rights and interests of citizens and legal persons. Therefore, the approval has had a real impact on the rights and obligations of the plaintiff and belongs to the actionable administrative act. If an interested party of the accident refuses to accept the cause of the accident or the responsibility for the accident as determined in the accident investigation report, it may file an administrative lawsuit with the people's government that gave the accident approval. Only the correct accident investigation report can correctly deal with the civil compensation lawsuit derived from it. The author has acted for the construction unit in this administrative litigation, and has been supported by the court, thus achieving a favorable situation.

03、Civilized construction

Concept and compliance objectives

Civilized construction refers to the construction activities that take measures in accordance with regulations to ensure the working environment of the construction site, improve the appearance and environmental health of the city, maintain the health of the construction personnel, and effectively reduce the impact on the surrounding environment during construction projects and demolition of buildings and structures.

Common forms of legal risk

1. The cost of civilized construction measures is not guaranteed.

2. Failed to take civilized construction measures in accordance with laws, regulations and technical specifications.

3. Causing damage to the surrounding environment and personal injury.

Adverse consequence

It is suggested to list the provisions of national laws and regulations, and then explain the local regulations formulated by various localities:

According to the“Regulations of Shanghai Municipality on the Administration of Civilized Construction of Construction Projects”, where the construction unit fails to fulfill the responsibility of coordinating management or urging, resulting in the failure to implement the requirements of civilized construction, the construction administrative department or other relevant departments shall order rectification within a time limit, impose a fine of not less than 30,000 yuan but not more than 100,000 yuan, and may order the suspension of construction. If a construction unit violates these provisions, the construction administrative department or other relevant departments shall order it to make corrections within a time limit, impose a fine of 10,000 to 100,000 yuan in accordance with these provisions, and may order it to suspend construction.

Compliance suggestion

1. Responsibilities of the construction unit

In the preparation of the project budget and budget, the cost of civilized construction measures shall be determined in accordance with the relevant provisions of the State, and a separate list of civilized construction costs shall be listed in the bidding documents or the project contract. The construction unit shall, in accordance with the contract, promptly pay the construction unit the cost of civilized construction measures. The construction unit shall use the cost of civilized construction measures for special purposes and shall not misappropriate it for other purposes.

2. Special requirements for civilized construction in key areas of the city

(1) The continuous and closed enclosure pattern set is simple, beautiful and coordinated with the surrounding environment, except for pipeline engineering, the height of the enclosure shall not be less than 2.5 meters.

(2) The safety net is made of dust-proof materials that meet safety requirements.

(3) It is prohibited to demolish foundation pit supports by blasting.

(4) It is prohibited to use high-noise operating equipment that does not meet the standards.

(5) If dormitories are set up on the construction site, the per capita living area of each dormitory shall not be less than 5 square meters, and living facilities shall be equipped in accordance with the standard.

(6) Night construction is prohibited, except for emergency, emergency repair works and works with special process requirements; If night construction is necessary due to special process requirements, relevant procedures for night construction shall be handled with the transportation administrative department or the district ecological environment department, and announced in advance in the surrounding area.

(7) It is prohibited to use steel bar and template forming processing operations.

(8) The work well construction of rail transit stations and tunnel projects shall adopt the covering method, except that the safety or space conditions of the construction site cannot meet the requirements.

The key areas for the construction of civilization in this Municipality refer to the areas within the outer Ring Road and other key areas determined by the municipal people's government. The municipal administrative department of construction shall put forward other key regional division plans according to population density, living environment, landscape requirements, etc., and submit them to the municipal people's Government for approval.

The municipal administrative department of construction shall, together with other relevant departments, formulate specific standards for civilized construction of construction projects in this Municipality, among which the standards for civilized construction in key areas shall be higher than those in other areas.

3. Responsibilities of supervision unit

Civilized construction shall be included in the scope of supervision, the implementation of civilized construction measures by the construction unit, the use of civilized construction measures, etc., shall be supervised, and shall bear the responsibility for the supervision of civilized construction of construction projects.

In the process of implementing supervision, the supervision unit finds that the construction unit has violated the civilized construction behavior, shall require the construction unit to make rectification; If the circumstances are serious, the construction unit shall be required to suspend the construction and report to the construction unit. If the construction unit refuses to rectify or stop the construction, the supervision unit shall promptly report to the construction administrative department or other relevant departments. After receiving the report from the supervision unit, the construction administrative department or other relevant departments shall promptly go to the construction site to investigate and handle.

04、Safety production license

Concept and compliance objectives

Administrative license refers to the act of granting citizens, legal persons or other organizations permission to engage in specific activities upon examination according to law upon their application. The State shall implement a production safety licensing system for mining enterprises, construction enterprises and enterprises producing hazardous chemicals, fireworks and firecrackers and civil explosives (hereinafter referred to as enterprises). An enterprise that has not obtained a safety production license shall not engage in production activities.

Common forms of legal risk

1. Did not obtain safety production permit from the construction project production operation.

2. The third class personnel of the construction unit have not passed the safety production training and assessment.

3. In the context of“management service”, no attention is paid to post-supervision.

Adverse consequence

Where a construction enterprise engages in construction activities without obtaining a production safety license, it shall be ordered to stop construction of projects under construction, its illegal gains shall be confiscated, and a fine of not less than 100,000 yuan but not more than 500,000 yuan shall be imposed. If a major safety accident or other serious consequences are caused and a crime is constituted, criminal responsibility shall be investigated according to law.

After the enterprise obtains the safety production license, it shall not reduce the safety production conditions, and shall strengthen the daily safety production management, and accept the supervision and inspection of the safety production license issuing administration. The safety production license issuing and administrative authority shall strengthen the supervision and inspection of the enterprise that has obtained the safety production license, and find that it no longer meets the safety production conditions prescribed in these Regulations, it shall suspend or revoke the safety production license.

Compliance suggestion

1. License conditions

To obtain a safety production license, a construction enterprise shall meet the following safety production conditions:

(1) Establish and improve the safety production responsibility system, and formulate complete safety production rules and regulations and operating procedures;

(2) The investment of funds needed to ensure the safe production conditions of the unit;

(3) To set up production safety management agencies, in accordance with the relevant provisions of the State with full-time production safety management personnel;

(4) the main person in charge, the person in charge of the project, and the full-time safety management personnel have passed the examination of the competent department of housing and urban and rural construction or other relevant departments;

(5) The special operators have passed the examination of the relevant business authorities and obtained the special operation qualification certificate;

(6) Managers and operators should conduct safety education and training at least once a year and pass the examination;

(7) Participate in work-related injury insurance according to law, apply for accident injury insurance for personnel engaged in dangerous operations on the construction site according to law, and pay insurance premiums for employees;

(8) The office, living areas and working places of the construction site and safety protection appliances, machinery and equipment, construction machinery and accessories meet the requirements of relevant safety laws, regulations, standards and procedures;

(9) Having occupational hazard prevention measures, and equipping operators with safety protective appliances and safety protective clothing that meet national standards or industry standards;

(10) Have prevention, monitoring measures and emergency plans for the dangerous sub-projects and the parts and links of the construction site prone to major accidents;

(11) Have emergency rescue plans for production safety accidents, emergency rescue organizations or emergency rescue personnel, and be equipped with necessary emergency rescue equipment and equipment;

(12) Other conditions stipulated by laws and regulations.

2. Post-event supervision

In order to implement a major measure to deepen the reform of the administrative system and promote the transformation of government functions after the 18th National Congress of the Party, the implementation of the management service. “Liberalizing” means streamlining administration and delegating power to lower entry barriers. “Management” means innovative supervision to promote fair competition. “Service” means efficient service to create a convenient environment. A number of reforms were adopted when applying for a work safety permit. Taking the Shanghai Municipal Commission of Housing and Construction as an example, most of the materials are no longer required to be provided at the time of application, but must be uploaded and submitted online within one month after obtaining the license. Some content should be provided when the administrative examination and approval authority verifies the content of the commitment, such as the record of the annual safety production education and training assessment of the enterprise's managers and operators; To participate in industrial injury insurance according to law, to apply for accident injury insurance for the personnel engaged in dangerous operations on the construction site according to law, and to pay insurance premiums for the employees; The office, living area and working place of the construction site and safety protective appliances, machinery and equipment, construction machinery and accessories shall meet the requirements of relevant safety production laws, regulations, standards and procedures. Thus, it reflects the shift from pre-supervision to post-supervision. Therefore, the construction unit must still meet the conditions of the safety production license after obtaining the safety production license, otherwise it may have to stop the construction operation due to the suspension or revocation of the safety production license.

(This is the end, welcome to exchange correction)