Research On The Legal Problems In The Construction Contract Dispute

There are many inherent characteristics in the construction contract dispute,such as strong professional,difficult to identify the facts,the trial period is long and difficult to judge.Interpretation of the Supreme People's Court on the Application of Law in the Trial of Disputes over Construction Contract by Supreme People's court in January 1,2005 has played a role in unifying the scale of enforcement of such cases to a certain extent.However,with the rapid development of the construction industry,a large number of cases occurred in the court.The reasons lie in that construction market is not standardized,supervision and management is not in place and legal provision is imperfect.The occurrence of new problems and difficult problems makes it necessary to develop new rules in the field of construction contract.Based on the analysis about the characteristics and causes of the construction contract dispute cases in Ninghai court from 2011-2015,this paper discusses the difficult problems in the current trial and puts forward some suggestions for improvement to promote the orderly development of the construction market.The first part of the article summarizes the characteristics of this kind of case and analyzes its causes based on the statistical data of the construction contract dispute case of the Ninghai court from 2011-2015.The main features of the case are as follows: longer period of trial,high appeal rate,large identification numbers,large target,complex subject and serious violations of law.The reasons for these characteristics are: complex cases involving and significant factors,imperfect laws and regulations,disunity about understanding and application of law and non-standard market regulation.The second part of the article discusses the difficult problems in current construction contract dispute cases.First of all,the legal sources of the disputes are counted.From the process of finding the source of the law,it is found that the provisions of the laws and regulations are more general,so the practical operability is not strong.Secondly,it analyzes the rights and obligations of different subjects that mainly related to the right boundary of employer,contractor,actual constructor and project manager.The main conclusion is that the actual constructor claims rights should follow the principle of privity of contract unless there is a special judicial interpretation.As to the effectiveness of the project manager's seal of the project department,foreign borrowing,acceptance of project funds,etc,it should conduct specific analysis to specific circumstances.It should determine whether it is authorized agency or apparent agency from the aspects of licensing authority,industry practices and practical procedures.Thirdly,this paper analyzes and identifies different nature of the contract.Among them,illegal subcontracting and affiliated contract are invalid contracts.The contract which is not consistent with the substantive content of the winning contract after bidding is also an invalid contract.The opinion is that the internal contract is a valid contract.Construction land planning permits and construction project planning permit can affect the effectiveness of the contract.Fourthly,it explores the project acceptance and settlement from the aspects of the determination of the duration about the project,the quality of the project,the engineering quality acceptance and settlement of project funds under black and white contract.The conclusion is that the construction project has the particularity that other general contract does not have,such as long cycle and high complexity.Not all factors can be expected at the time of signing the contract,so the principle of change with circumstances can be applied here.The settlement of black and white contract should comply with the provisions of the law in principle in addition to exceptional case.The fifth part is to discuss the subject,scope,duration and mode of exercising about the right of priority.Right of priority has many problems and links with many issues,but the legal provisions are incomplete,so it needs to conduct specific analysis towards specific circumstance to balance the interests of all parties.Finally,liability for breach of contract is discussed.Liquidated damages should be adjusted based on the actual loss with considering the actual situation of the case,the performance of the contract and the analysis of the fault of the parties.Interest and liquidated damages are different in nature and can be claimed at the same time.The third part of the paper discusses the improvement measures of the settlement mechanism about construction contract dispute and puts forward the following suggestions: formulate and revise legal norms,supervise bidding procedure,regulate construction process,standardize the third party assessment,unified legal interpretation and application.The fourth part of the article is the conclusion.It has a comprehensive summary of the trial difficulty in construction project contract dispute cases.The conclusion is that we must perfect the legislation,strengthen the supervision,unify the understanding and application of law to solve the disputes from the source.