On Legal Risk Prevention Of Construction Contract

With the rapid development of China’s economy and society, the construction projectwith the prosperity and development of market economy and the number is growingrapidly, the scale expands day by day. At the same time, the national construction ofcontinuous progress and perfection of legislation, terms and contents of the constructioncontract also changes with the development of society. Compared with other contracts, acontract for construction project shows a large amount of contract, contract subject, theperformance of the contract, the contract content features a long time professional strong,contract complex procedures etc. Therefore, to conclude a contract clause constructionstructural integrity, strict contract, prevention may lead to contract disputes and litigation,legal professional and construction engineering related theoretical knowledge andpractical experience. The current construction project for China to participate in theawareness of the parties to the legal risks of construction project contract in the relativelyweak, the construction contract to perform from making an identification and preventionof legal risk factors in the process of the lack of the corresponding. Therefore, in order tobetter prevention of construction project contract to avoid legal risks, due to the risks ofcontract law in economic losses, the full realization of the construction project contract,according to the "construction contract legal risk prevention research" as a topic, theframework aims to construct the construction of legal risk of engineering contract, throughthe discussion on the following five aspects, establish legal risk prevention system and thecorresponding:The first part, mainly introduces the concept and characteristics of the constructionproject contract legal risk. First the concept of construction project contract legal risk isdefined, through the inductive construction contract law on the basis of risk that in today’ssociety conditions should strengthen the construction contract the necessity and urgency oflegal risk prevention. Secondly, according to the subject of legal risk, construction projectcontract content, form, signing and performing five factors were analyzed, according tothe characteristics of the construction project contract itself, find out the root cause of the construction of legal risk of Engineering contract.The second part, the legal risk prevention of construction project contract are studied.First of all, from the main body of a construction project contract to investigate whetherbelongs to the contractor without corresponding qualifications or is anchored in otherconstruction enterprise name borrows its qualification situation; or is in violation of statefor the mandatory rules of the law of bidding in the contract process; the existence ofillegal subcontracting, illegal in four aspects. The case the effect of construction contractfor the identification, the paper analyzed four cases lead to contract analysis, accuratedetermination of the validity of the contract, to prevent the occurrence of legal risk. Thenthe special exceptions of construction project contract in judicial practice are illustrated,and the construction project contract of undetermined effect under different conditions ofprocessing were analyzed and compared.The third part, the construction of legal risk prevention engineering contract dispute.Firstly, analysis of construction project contract in the process of different main contract,the causes of quality problems in construction engineering project construction contractor,such as improper, investigation, design units is the error, or the employer fails to performduties completely, or building materials supplier construction material defects. Then,based on the construction project that should be undertaken to differentiate eachresponsibility of the quality responsibility, to prevent the construction project contractlegal risk because of quality defects in construction may lead to.The fourth part, the construction contract price settlement of legal risk preventionstudy. First, analysis the effect of construction cost settlement documents of differentpayment of the project price is different, with different construction engineering settlementdocuments identified effectively so as to minimize the project payment disputes. Thenanalysis in the "black-and-white contract" with the contract change, not yet completedlegal risks of engineering and engineering quality defects under the engineering settlementand litigation disputes, how to correctly calculate the quantities and the settlement ofproject cost basis. Three aspects of premise condition, finally the engineering cost can beidentified from the project cost and project cost identification range examination of expertconclusion and adoption of the project construction contract price under cost identification dispute.The fifth part, expert evaluation mechanism of construction project contract. First ofall, introduced the concept and nature of expert evaluation mechanism, and then the expertevaluation mechanism and our traditional dispute resolution model for comparison,analysis of the traditional dispute resolution mechanism in the construction contractdisputes due to its shortcomings in dispute settlement in the construction field. In theexpert evaluation mechanism, by the professional engineering, legal and other dominantneutral third party disputes of the construction engineering contract; finally with theFIDIC standard contract documents for the resolution of disputes settlement mechanismfor the cases that the text of FIDIC as the world’s more effective dispute, which enrich thetheory and successful practice experience to solve the mechanism of inspiration to China’scurrent construction project disputes, and on the basis of the research of our constructioncontract model text of risks of expert evaluation mechanism and shortcomings, and putforward the policy.