Research On The Validity Of The Construction Contract In Violation Of The Peremptory Norms

The judgment of the validity of construction contract in violation of theperemptory norms has been a problem which troubles judicial practice in China. Overthe past decade, China’s booming construction industry, comprehensively promotedChina’s modernization, but also exposed the drawbacks of the construction industry.The disorder and prone dispute in the construction market became a prominentcharacteristic of the construction industry, the case involving the judgment of thevalidity of construction contract in violation of the peremptory norms is everywhere.For the validity of construction contract in violation of the peremptory norms, thecourts generally judged the validity of the construction contract based on the"Contract Law" Article52, paragraph5, and "interpretations of the supreme people’scourt about the issues concerning the laws applicable to the trial of cases of disputesover the construction contract". But in fact the "Contract Law" Article52, paragraph5does not play a substantial role on the validity of the contract, and judicialinterpretation on the validity of the construction contract whether the provisions arebased on a correct interpretation of the law has yet to be discussed.From the peremptory norms themselves, This paper discusses the use ofperemptory norms, classification and value of content. Through analyzing the lack ofawareness of the validity of the construction contract in violation of the peremptorynorms in the academic stage, the paper streamlines the general relationship betweenthe peremptory norms with the validity of the contract. Based on the interpretation oflaw, to interpret the impact of the peremptory norms on the validity of the contract,concluded a method of judging the validity of construction contract in violation of theperemptory norms and applied it in practice.The paper analyzes the validity of theconstruction contract under four typical situations. The situations conclude thecontract in non-written form, violation of the qualification regulations, violation ofsubcontract, subcontract management regulations, violation of bidding regulations. Inthe situations of the contract in non-written form but the main obligations to be fulfilled, violation of the qualification regulations, violation of subcontract,subcontract management regulations, violation of bidding regulations but the projectdoes not belong to the scope of the mandatory tender, the contract should be valid. Ifthe contract in non-written form has not yet fulfilled the main obligations, theconstruction contract is not established, there is not a validity problem. If the projectbelongs to the scope of the mandatory tender, the contract in violation of biddingregulations should be invalid.