Some Legal Problems Of The Construction Contract

The construction contract, which is a significant measure to regulate the construction activity, defines the right, obligation and the liability of the contracting parties and guarantees to carry out the constructive task. It is of great importance to lay more emphasis on the study of construction contract. This article dwells on the general survey of the system of construction contracuthe formation of the construction contract the legal effect of the construction contract and the priority right to be repaid of the contractor. This article falls into four parts:The first part: A general survey of the system of construction contract. This part starts with the historical evolution of the system of the construction contract. Thereafter the author introduces that in the civil law of China the system of the construction contract has been separated from the traditional contracts for work and the social liability of the contracting party has been intensified, the contracting freedom limited for the purpose of protecting the benefits of the public. Finally the author presents the features of the construction contract, which are different from those of the contracts for work.The second part: A study on the formation of the construction contract. The author holds that to form a construction contract by means of tender offer is the major way to form a construction contract. The legal nature of the tender offer is an invitation to offer. Tender offer has certain legal binding effect which is different from the ordinary invitation to offer. While the legal nature of the tende'r(投标) is an offer which is sent to the person who invites the tender (投标人 by the person who tenders (投标人 The notice of ++, signed by the person who invites tender is an acceptance of the offer made by the person who tenders. The notice of ++ takes effect when it is issued and meanwhile the construction contract is formed. The author suggests that China should refer to the international legislative experience to perfect the standard version of the construction contract.The third part: A research on the effect of the construction contract.In the author's opinion the effect of the cnnntruction contract, which is closely related to the formation of the contract, is equal to the binding force of the construction contract. While the formation of the construction contract and the inurement of it are two concepts which are different in nature. By stating whether a construction contract is valid or invalid is a legal comment on whether a construction contract has been legally formed. The author puts forward the method to dispose of the invalid construction contract in accordance with several situations under which the construction contract is invalid.The forth part: A study on the priority right to be repaid of the contractor of the construction contract. Provision 286 of the contract law in China establishes a brand new system of the priority right to be repaid. As for the legal nature of the priority right to be repaid there are three different viewpoints. The author holds that the nature of the priority right to be repaid is a legal right of mortgage. In this part the author addresses on the establishment of the priority right to be repaid, its priority effect, the jus in personam which the priority right to be repaid guarantees to liquidate, the object of pledge of this priority right, the period of limitation of the priority right to be repaid and the ways to realize this priority right as well.