Research On The System Of Construction Contractsfromthe Perspective Of Relational Contract

Contemporary contract law was plagued by the main dilemma that the traditional contract law system featuring autonomy of the will and formalism was no longer able to adapt to the huge changes in the economic structure and trading form of modern society,which led Grant Gilmore,American scholar,to draw the conclusion in 1974 that Contract has died.Thereafter,new theories of contract law constantly sprang up,attempting to revitalize the contract law.Among them,the Relational Contract Theory proposed by Ian R.Macneil was considered to be one of the most developed theories with its profound insight and grand theoretical construction.This theory intended to distinguish the traditional individual contract from the modern relational contract,and to seek the source of binding force and the normative principles of modern relational contract from social relations and norms of community behind contracts beyond the category of promise and agreement.This paper aims to study the substantive characteristics and inherent laws of the construction contracts and to propose the relational norms and specific rules for adjusting the construction contracts with the relational contract theory as the basic analytical framework and theoretical tool.In addition to the introduction and conclusion parts,this paper is divided into six chapters.The introduction part firstly puts forward the consciousness of problems of this paper,briefly explains the key ideas of this paper,and emphatically discusses the main reason and purpose why the author selects the relational contract theory as the basic analytical framework to study the construction contracts.The author believes that at present,in the face of codification and decodification,China's contract law should take into account the common principles of contract law and the combinative application of special types of contract norms.To study construction contract from the perspective of relational contract theory is not only beneficial to the development of the general theory of contract law,but also conducive to the specific type study of construction contracts.Starting from the historical change and evolutionary path of contract law,chapter one focuses on the new perspectives and new discoveries of relational contract theory after combing the formation and development of classical contract theory,and analyzes the core concepts and main contents of shift of relational contractparadigm,thus establishing the basic theoretical framework for the application of relational contract theory to analyze the construction contracts.The author deems that several basic normative principles established by the relational contract theory that are different from the traditional contract theory are as follows:The cooperation principle established on the value of community,the continuity principle of maintaining long-term contractual relationship and the elastic principle of guaranteeing the flexibility in performance of contracts.In terms of dispute resolution methods,instead of depending on the enforcement power of the third party(court),the relational contract norms are committed to setting up a governance framework to provide the relevant parties with a consultation and governance mechanism.Chapter two probes into the relational contract attributes of construction contracts.This chapter summarizes the scope and basic types of construction contracts and sorts out the relational characteristics of construction contracts,including:uncertainty of contents,dynamics of agreement formation,interdependencies among the contracting parties,interconnection of contractual relations,and high degree of integration of public and private law.Based on the analysis of the above characteristics,this chapter reviews the major problems in the practice of construction contracts and points out the significance of employing the relational contract theory to solve these disputes.From chapter three to chapter six,this paper mainly adopts the basic principles of relational contract norms to discuss some specific problems of construction contracts,including the obligation of cooperation,obligation of negotiation,application of the principle of change of circumstances in construction contracts,and effectiveness of construction contracts.The author tends to combine the relational contract theory in sociology with the legal interpretation theory in law to find out the inherent norms hidden in the construction contracts and to promote them to the external norms of material law based on the general terms such as the principle of good faith in a bid to conduct a study upon the establishment of relational principle and rule system of construction contracts from the perspective of interpretative theory,to make the contract law more responsive to the practical requirements of construction contracts and to propose opinions and suggestions concerning how to perfect the norms of construction contracts from the perspective of legislation theory.