Reflection On The Practice Of Invalid Construction Contract Treated As Valid Contract

In recent years, with the vigorous development of the social economy and the construction industry, disputes over construction contract have become one of the most common types of judicial cases. On the January 1, in 2005, Issues Concerning The Application of Law in Trial of Dispute Cases Involving Construction Project Contracts Interpretation was implemented. It stipulates that when a construction project contract is invalid, it will still be treated as valid. Since the implementation of this interpretation, controversies from both theory and practice circle have never ceased.To explore the effect of the implementation of the interpretation, the following efforts have been made. Counting up the statistics of the cases put online from 1 January 2001 to 31 December 2015 judged by People's Court at all levels to analyze the current status and trends of invalid construction project contract cases through several empirical research methods. Analyzing 10 typical judgments made by the People's Court at or above the provincial level as well as its rules of adjudication referring to relevant laws to categorize these construction project contracts.The results show that effective treatment for invalid construction contract is the product of the times. The starting point of legislators for the pursuit of respect for autonomy of the parties and stability of the market order should be affirmed, however, the actual effect is not that ideal. And the reason behind it is worth reviewing.On the one hand, from the aspect of criteria of a valid contract, the effect of invalid legal acts and other basic theories of civil law, this practice has its jurisprudential defect congenitally. On the other hand, from the aspect of the stipulation of laws and regulations, this practice has postnatal deficiency due to unclear stipulation, which has led to issues like "different sentences to similar cases" in judicial practice.Therefore, the continuous application of effective treatment for invalid construction contract depends on the theoretical support of civil law and constant improvement in judicial practice. Theories and practice in interest balancing standard, mandatory provisions as well as correction of validity of the contract have significant influence on the standard of judging the validity of contracts, and also provide a useful reference and ideas to explore how to deal with the problem. Inspired by the idea of revocation of invalid legal acts, the ease system concerning invalid legal acts can be creatively introduced to solve the disputes in construction contracts. That is to regulate the application of correction theory to the validity of contract, to limit the scope and tether of effective treatment for invalid construction contract supplemented and complemented by the validity transformation theory of invalid legal acts and legal interpretation methods. All these points are intended to solve specific problems in judicial practice effectively.