Legal Regulation On Formal And Substantial Contracts In Construction Market

At present, the construction market in China, "Contract of yin and yang" exist side by side has become an open secret, "Contract of yin and yang" has become the order of China's construction market, one of the major source of confusion. As a result of the construction market of China's development is not perfect, institutions and mechanisms have not been completely straightened out, the main lack of contract construction market credit risk awareness, awareness of weak performance, coupled with the imbalance between supply and demand in the construction market and other reasons, and sign a "contract of Yin and Yang" has become part of the construction developers and contractors to avoid government regulation, to seek illegitimate interests of the principal means. And "contract of yin and yang" and the signing of a poor quality, such as engineering, construction projects do not pay a long time, illegal subcontracting, subcontractors, and even the deduction of arrears of wages of migrant workers and other social problems, not only to the entire construction market brought great the risk of disrupting the order of the construction market, has seriously hampered the healthy development of the construction industry, but also to people's lives and property of the potential security threats, serious damage to the weak as the legitimate rights and interests of migrant workers, the impact of a socialist harmonious society Construction. Therefore, the study of China's construction market on the prevalence of "Contract of yin and yang" issue, both the normative order of China's construction market, the promotion of the healthy development of the construction market, or the maintenance of the construction market of the legitimate rights and interests of migrant workers and to ensure that construction quality and people's lives and property safety are of great significance. In order to eradicate the "Contract of yin and yang" alone "Tendering" and "contract law" and related administrative rules is not enough, but also emphasizes the need for parties to create a legal environment of credit to guarantee system performance, such as help from the source put an end to such problems.The full text is divided into the following four parts:The first part, based on the "contract of yin and yang" concept and features of the interpretation of the "Contract of yin and yang" causes. First of all, the "construction contract" and "Contract of yin and yang" definition of the concept of "construction project bidding and the bidders," the relationship between the comb. Secondly, the adoption of the "contract-yang" and "Yin contract" compared to clarify the "Yin contract" the main features. Finally, from the " Fronts the capital ", " force down the prices", "dismembered contract" and so on, reveals the "Yin contract" have the main reason that the parties to maximize their own interests to pursue, to avoid government regulation.The second part, mainly on the "Contract of yin and yang" social harm and the force of law. "Contract of yin and yang" through "positive contract" to deceive the government regulation, and through the "Yin contract" builders reduce construction quality, construction costs down, forcing Fronts the capital contractors, such as extended payment period, which caused major harm to society in : to disturb the order of the construction market; lead to a large number of sub-contractors and subcontractors to happen; resulting in poor quality of the project; project a long time so that long-term care do not pay the wages of migrant workers in arrears; serious impact on the construction of a harmonious society and endanger people's lives and property, etc. . On the "Contract of yin and yang" the legal effect of the administration of justice in our country the practice of the past, and the adjudicating body from the basic principle of civil law tends to the actual performance of that contract, that "Yin contract" in force; However, in recent years will be "Yang contract" as a basis for settlement, that is, tend to "Yang contract" effective. China's Supreme People's Court in October 2004 issued "on the construction contract dispute to hear the case law applicable to the question of the interpretation of Article 21 clearly stipulates: "the parties in respect of the same construction project entered into the construction of a separate construction contract with the record of the successful bidder after the contract inconsistencies in the substance, should be based on the record of successful project contract price as a basis for settlement."The Third Part. Interpretation of China's current regulatory system "of Contract of yin and yang" status of the legislative and judicial. That the combination of China's "Tendering", "Contract Law" and other related laws and regulations and relevant judicial interpretations, analysis of the current regulatory system "of Contract of yin and yang" status of the legislative and judicial. China's "Tendering" and "contract law" not on how to regulate the system, "Contract of yin and yang" to make clear, only the above-mentioned interpretation of the Supreme People's Court's judicial system on how to regulate "Contract of yin and yang" provisions of the issue of principle.The Fourth Part.On the elimination of "Yin contract" the basic moves. Fundamentally from the norms of the construction of the market order, it should be through the establishment of credit system construction contract, as well as security systems, to create a credit contract first environment to eradicate from the source "of Contract of yin and yang" entered into the soil. Only the establishment of the credit system works in terms of the lease, first of all, it is necessary to establish a clear attribution of powers and responsibilities clearly to protect the powerful and smooth flow of the modern property rights system, which is conducive to the formation of a good market order and the healthy development of credit relations; Second, should increase the credibility of the construction market, the fight against fraud, improve the credibility of the cost; once again, to establish a long-term construction contract and repeated game mechanism, the possibility of lower transaction deception. Finally, the increased construction contract supervision and set up a public enterprise contract system and enhance the credit awareness of the lease.