The Identification And Disposal Of Construction Contracts For Invalid Construction Project

The development momentum of the real estate market has weakened in recent years,and the construction market developed slowly,so the dispute cased caused by invalid construction project's contract have started to rise.When negotiating and signing the contract of construction project,the problems that the bidding process does not conform to the stipulation of the law,borrowing qualification,illegal subcontraction and illegal subpackage emerged repeatedly,which has promoted the various and complex reasons of the non-legal force of the contract of construction project.In addition,this kind of contract reached the complicated interests,and the parties of majority of the contract disputes cannot adopt the negotiation means to solve the problem,but to take the means of lawsuit.The party filed the lawsuit to the people's court,and hope the count to make a affirmation to the effectiveness of the construction project's contract,and then according to the provisions of the law,to safeguard the interests of all parties of the contract,and finally to handle the and solve the construction dispute properly.However,our country 's stipulation towards the identification and its legal consequences of invalid contract is still rough and ambiguous,and then the administrative compulsory criterion of the construction field is too much,and the law and regulation are not very perfect,which has led that the enforcement recognition in the construction project's contract became the difficult point in law practice.At the same time,the construction project's contract was sentenced to be invalid by the court,and how to balance the party awarding contract,the contractor and the interests of all parties and make the project payment settlement,and the methods of judicial practice are not unified,with a lot of controversies.This paper holds the fairness and justice,to efficiently solve the construction project's disputes,standing on the court's position,to make an elaboration on the dispute processing methods under the situation of invalid construction project's contract,in order to form the complete idea of handling the dispute of construction project's contract,to correctly deal with the dispute cases of invalid construction project's contract and related cases.Focusing on the analysis of the related theory of the invalid contract,this paper summarizes and introduces the related legal provisions about invalid contract in our country,and then combining with the part content of the "Contract Law","The Interpretation of the Supreme People's Court about the Trial of Construction Project Contract Dispute Case and its Applicable Law"(hereinafter referred to as "Construction Project Contract Interpretation")to explain the subject qualification element,declaration of intention element,legality element,procedure element these four elements,and then this paper analyzes the situations of invalid construction project's contract,which are divided into five basic situation,five legal situations and other five situation that in the outside of the "Construction Project Contract Interpretation" but appears frequently.The author thinks the three types that are considered to be invalid should be analyzed.In the end of the paper,the author makes a summary and analysis of the processing method toward invalid construction project's contract from three kinds of situations.In the process of exposition,the author lays particular stress on the following several aspects:the first is how to correctly use of article 52(5)of the "Contract Law" and the article 14 of and "The Interpretation of the Supreme People's Court about Applying to ' The Contract Law of the People's Republic of China(2)'"(hereinafter referred to as "The Interpretation about Contract Law(2)" to make the affirmation on the effectiveness of the construction project's contract.The difficulty of applying the above legal and judicial interpretation is how to correctly understand and grasp the "mandatory rules on effectiveness".Because there is still no specific provision on "mandatory rules on effectiveness" in domestic current legal system,the academic circle has fierce discussions on this issue.After a lot of discussions,the academic circle has formed the mainstream opinion about bow to identify the mandatory rules on effectiveness.As there is too many administrative specification in the construction field.how to identify the "mandatory rules on effectiveness "is certainly a difficult question of judicial practice.Different courts in different regions have different understanding towards the "mandatory rules on effectiveness",with different standards,and it is the unified judicial standard and judicial scale.The author thinks that,the legislature shall adopt the opinion of Professor Wang Liming to perfect the "mandatory rules on effectiveness".Secondly,the author includes the five other common construction contracts outside of the "Construction Project Contract Interpretation" into the invalid situation.The situation of invalid construction project's contract in real life is very complex.Due to the hysteresis quality of the law,the "Construction Project Contract Interpretation" did not have interpretation on all the situation of invalid construction project's contract,such as the double contracts that appears frequently in the process of judicial practice,the black contract in the compulsive and free bidding projects,the construction project's contract under the situation that the construction unit has not obtained the right to use construction land planning permit,the contract that lower than the cost,the subcontracting contract without labor qualification of construction unit,etc.,the effectiveness of these common contracts was not regulated clearly in the "Construction Project Contract Interpretation".After detailed analysis,the author thinks that these types of contract types should be classified into invalid construction contracts.The third is to analyze and treat the principle of "invalid affirmation,valid treatment" focusing on the project funds of invalid construction project's contract in the article 2 of the "Construction Project Contract Interpretation" comprehensively and correctly.In article 2 of the "Construction Project Contract Interpretation",it points out that if the construction project's contract is identified to be invalid by the court,but the construction project was accepted,the constructor still can require the developer to pay the project funds,which means that the invalid construction project's contract adopts the processing principle of "invalid affirmation,valid treatment".The dispute about whether this principle is reasonable is very big.Many scholars hold negative opinions,as they think that the principle can not express the requirements of the principle of civil law,and disobey the legal principle of '"contract invalid",and can not effectively deal with the related problems and disputes in the project funds.In view of this article,the author thinks that the principle of "invalid affirmation,valid treatment" is the helpless choice after the balance of the interests of all parties,and it has important practice orientation in the judicial practice.Since its issue and implement to now more than ten years,it has gained recognition in the construction field gradually.The fourth is in the process of handling the dispute of invalid constructionproject's contract according to the article 3 of the "Construction Project Contract Interpretation",the people's court meets the application difficulties.Focusing on the difficulties,the author puts forward the feasible solution after the analysis.The "Construction Project Contract Interpretation" used the "the unqualified project was accepted after repairment" as the condition of project funds payment,which has solved the payment terms problem of court judicial practice for many years.However,there are two application problems in the judicial practice:the duration of the construction project repairment and the handling of "no acceptance without repairmen" to the party.From the perspective of judicial practice,the author puts forward the opinions on these two applicable problems.Standing in the perspective of judicial practice,and combining with the author's work experience,this paper discusses the elements that should be considered in the process of invalidity identification of the construction project's contract,and makes a interpretation on the regulated situations of invalid construction project's contract that stipulated by the"Construction Project Contract Interpretation",and the invalid situations that outside of the"Construction Project Contract Interpretation" but frequently encounters.From the need of dispute solution,this paper elaborates the dealing methods of invalid construction project's contract from several situations,hoping to provide reference for the judicial practitioners.