A Research On The Validity Of "Black And White Contract" In Construction Project

Construction contract is not only a named contract based on the autonomy of will,but also the nature of public power interference."black and white contract" in the construction project is the result of the subject to pursue the maximization of its own interests,although it is expressly forbidden by law.The "black and white contract" is due to the incomplete development of the construction market,the pursuit of profit maximization by the contract subjects and the inadequate legal system.Because of the long period of project and the large amount of engineering,it has a great impact on the people's livelihood,and it is of great significance to standardize the "black and white contract".The discussion about the validity of "black and white contract" can play an important role in ending disputes.However,the premise of determining the validity of "black and white contract" is to clarify the type and constitution of "black and white contract".The "black and white contract" is based on whether it is a compelling bidding project and whether it is through the bidding process.According to different types of contracts,the effectiveness analysis is made.It's not really namely the establishment of "black and white contract" only if there are two or more contracts.We should define "black and white contract" from the main body standard,content standard and procedure standard,and attach importance to the standard of effectiveness analysis based on contract autonomy.To study the effectiveness of "black and white contract" in construction projects,we need to take an empirical analysis.Based on a large number of judicial practice cases,the author analyzes the problems existing in the identification of "black and white contract".Because of the unclear standard of "black and white contract",the case judge's thinking mechanization,and the judge's large discretion leads to"different judgment of the same case".In addition,the problem in practice is that the current law is limited in dealing with the "black and white contract".For example,the main article of the number fifty-second in "Contract Law" is not strong;the "Tendering and Bidding Law"and relevant judicial interpretation escape the standards and the validity of "black and white contract".Besides,the standard is unclear,and the referee decides that the effectiveness of the "white contract" and ignoring the autonomy,which is the basis for the contract.However,the essence of "black and white contract" in construction project is the contract behavior,which should be analyzed by the meaning of contract subject.The 146th article and the 153rd article in"General Provision of Civil Law"plays a radical role,and it's the first time to stipulate the conspire hypocritical act.Pretended transaction should be invalid because it's not the real meaning,while the hidden behavior of the real meaning is discriminated according to the specific law.Therefore,the "black contract"is effective in principle,and the"white contract"should be invalid as the means to avoid the law.However,due to the nature of public power in the legal tender cases,in order to use and maintain the order of bidding,stable market and norms of state-owned assets,the conflict of public interest and freedom of contract system system needs analyze from the point of view of interest balancing.According to the regulations of conspire hypocritical analysis and the conclusion is drawn that the "black contract" is valid in principle and the"white contract" is invalid in the"black and white contract" of the voluntary tender project.In thus,in the legal tender project,"white contract"exceptional effective and "black contract" is not of course invalid.Contract disputes are comprehensively measured by the judge in combination with the real meaning of the parties,the actual performance and the concept of fairness and justice.