On The Validity Of Formal And Substansial Contract Of Construction Projection Contracts

In theory and comparative law,formal and substantial contractsare clearly considered as conspire hypocritical act.Because of lacking conspire hypocritical act in Chinese Contract Law,it is difficult to identify validity of formal and substantial contracts for construction projects.Currently,validity of formal and substantial contracts for construction projects has not get accurate answer both in judicial practice and on academic discussion.In this article,I intend to explore how to determine the validity of the formal and substantial contracts for construction projects in our country.The first chapter introduces the basic concept of formal and substantial contracts for construction projects,the reasons of formation and legal disadvantages.Formal and substantial contracts for construction projects refer to two contracts for the same construction project.One is recorded,the other is private and actually performed.The second chapter is the core part of this paper,discussing the validity of formal and substantial contracts for construction projects in our country.China's domestic differs from foreign legal practice so much,because our Contract Law has deficiencies in the system itself.The first thing in exploring the validity is to confirm the record does not affect the validity at all.Trough theoretical analysis,I agree the validity of formal contract shall be denied by paragraph 3,Article 52 of the Contract Law.The discussing of validity of substantial contract is focus on paragraph 4 and 5,Article 52 of the Contract Law.I suppose to discuss them in the respect of national interests and public interests together.Article 21 of Interpretation of the Supreme People's Court on Issues Concerning the Application of Law for the Trial of Cases of Dispute over Contracts on Undertaking Construction Projects does not talk about the validity of the contract,which only applicable for the construction shall bide and when both formal and substantial contracts are void.On analyzing the validity of substantial contract,I believe that Article 46 of the Bidding Law of the People's Republic of China is only a management of prohibitions.The third chapter puts forward four proposals:(1)perfect our contract invalid system;(2)understand article 21 of "judicial interpretation" accurately and narrow its scope,repeal this article in the future;(3)strengthen the protection of other bidders and third parties reliance;(4)promote the effect analysis of formal and substantial contracts in this paper to other areas of the contract.