Definition Of Substantial Changes In Registered Construction Contracts

According to Article 21 of the Supreme People's Court's Interpretation of Several Issues Concerning the Application of Laws in the Trial of Construction Project Construction Contract Disputes(hereinafter referred to as Judicial Interpretation of Construction Projects(I)),the Supreme People's Court shall apply to the trial of construction project contract disputes.Interpretation of certain issues of the law(2)(hereinafter referred to as the judicial interpretation of construction projects(?))Articles 1 and 9 of the provisions of the contract for the same construction project and the substantive content of the successful bidding contract,for the registered contracts For settlement purposes.There are many problems in the application of this clause,such as the lack of applicable certification standards and guiding fact-finding guidelines.In addition,the parties have various forms of changes to the content of the successful bidding contract in practice,and it is very easy to "black and white contract".Confusion,the above facts have increased the difficulty of identifying the substantive changes in the current bid-winning filing contract.Judicial Interpretation of Construction Projects(1)Article 21 and Judicial Interpretation of Construction Projects(2)Article 1 and 9 avoid the issue of the validity of an agreement that is not inconsistent with the substantive content of the successful bidding contract,and directly stipulates that the filing contract is the basis for settlement of the project.Although this regulation strengthens the filing management of bidding contracts for construction and construction,and simplifies the procedures for settlement of construction contract disputes,it also has the suspicion of violating the rules of contract validity,violating the principle of honesty and credit,and intervening in the autonomy of civil activities.In addition,in the practice identification of construction and registered construction contract changes,there is still a lack of recognition standards,non-mandatory bidding projects,but the parties have fulfilled the effectiveness of the bidding process,the validity of the incomplete filing contract and the confirmation of the content of the supplementary contract The validity of the contract in the case of conflicts of contractual content before and after the substantive change,the confirmation of the contents of the contract in the case of invalidity of the filing contract,and the failure to rationally apply the principle of changing the situation.The identification of the substantive change of the successful bidding contract is not a simple comparison of the two contract texts,but a process of value evaluation.The evaluation process involves not only the evaluation of the public interest,but also the rights between the parties.The evaluation of whether the obligation is seriously unbalanced,because the public interest and the unfairness are highly generalized terms,there is no specific standard of recognition,which makes it difficult to identify the substantive changes in judicial practice.Through the analysis of the sample of the cases collected in this paper by using the analysis method of big data,it can be found that the court's determination of the substantive change of the construction and construction filing contract is mainly analyzed from the two aspects of substantive content and change range,among which the substantive content It mainly includes the scope of the project,the price of the proj ect,the quality of the proj ect,the duration of the project,and the liability for breach of contract.For the extent of the change,the court's referee standards vary greatly,mainly relying on the discretion of the court,and there is no established standard.For the improvement of the path of substantive alteration of the construction and construction contract,both the legislation and the judiciary should respect the party's autonomy,pay attention to the essence of fairness,justice,and follow the basic concept of interest balance.Compared with the provisions of Article 21 of the judicial interpretation of construction projects(1),the judicial interpretation of construction projects(2)further clarifies the substantive content of the contract for the successful bidding,and explicitly includes the scope of the project,the construction period,the price of the project,and the quality of the project.However,there is no clear provision for breach of contract clauses,dispute resolution clauses,etc.In addition,for the determination of substantive changes,the construction project judicial interpretation two drafts of the draft provisions stipulate the principle of recognition,but the clause was deleted at the time of final publication.The author believes that the judgment on the substantial change of the construction contract of the winning bid should be considered from multiple angles,combined with the performance characteristics of the construction proj ect,using the method of benefit measurement,from the perspective of the basic rights and interests of the parties to the contract,the interests of the third party,and the public interest.Judging that if a contract concluded separately causes serious infringement of any of the above interests,it can be deemed to constitute a substantial change;for the determination of the extent of the substantive change,it should be clearly understood that the substantive change should be based on the principle of good faith.And pay attention to the balance of interests among various stakeholders.Specifically,the author believes that the substantive change in practice is based on violation of the validity norm,and the supplementary agreement on the contractual conflict clause should be strictly determined.The supplementary agreement for engineering change should refer to the applicable winning bidding contract and the construction project installment supplementary agreement.Not a substantive change,etc.