The Study On The Validity Determination Of The "Yin-yang Contract" Of Construction Projects

In scientific law and comparative law,the Yin-Yang contract(formal and substantial contract)in a broad sense has false declaration of will,hence,conspired and hypocritical,which is rather clear.After the promulgation of the General Provisions of the Civil Law,the act of false representation and concealment are stipulated for the first time in the civil law of our country,which provides a clear way to confirm the validity of Yin-Yang contract.Based on the contract law,tendering and bidding law and the relevant provisions of the judicial interpretation [2004] No.14,the thesis analyzes the status quo and weaknesses of validity determination of Yin-Yang contract in construction project,and then explores how to confirm the validity of Yin-Yang contract of construction projects based on General Provisions of the Civil Law.The first part introduces the background of Yin-Yang contract of construction projects,mainly including the basic concepts,the causes of its formation and the potential dangers.The Yin-Yang contract of construction projects,on the whole,refers to the fact that the parties to the contract sign two or more contracts of different substance for the same construction project,of which the Yang contract is for the supervision of the administrative department in charge of construction and the other Yin contract is private and actually performed.The second part focuses on the provisions of contract law,tendering and bidding law and relevant judicial interpretation,and discusses the status quo and defects of the confirmation of the validity of the Yin-Yang contract of construction projects with judicial cases.First of all,the court holds that the validity of the Yin-Yang contract of construction projects is mainly governed by the provisions of article 52 of the Contract Law,among which the majority negate the validity of the contract by “violating the mandatory provisions of laws and administrative regulations”,but the judgment results are not uniform in practice.Secondly,article 21 of the judicial interpretation [2004] No.14 is the most controversial on the validity determination of the Yin-Yang contract of construction projects.In fact,article 21 does not judge the validity of the Yin-Yang contract of a construction project,which is essentially just a judgment rule.It should be noted that the scope of the application is that both the Yin and Yang contracts are invalid and bidding procedures are conducted according to law.When both the Yin and Yang contracts are invalid,the judgment shall not be overly dependent on article21.The settlement basis of the project payment shall be based on the price actually paid,theprice finally signed,the fixed price of the agreement,the appraisal price,the industry standard and so on.Finally,the record cannot become the effective element of the construction project contract.Whether there is a record or not does not affect the effectiveness of the Yin-Yang contract of construction projects.The third part is the response to the deficiencies of the validity confirmation of the Yin-Yang contract of construction projects.After the implementation of the General Provisions of Civil Law,it provides legal support for establishing a relatively unified approach for determining the effectiveness of the Yin-Yang contract of construction projects.According to the provisions of paragraph 1,article 146 of the General Provisions of Civil Law,in principle,a Yang contract is invalid,while a Yin contract is judged independently according to the relevant provisions involved in it.In juridical practice,the confirmation of the validity of a Yin contract involves diverse laws and regulations,thus needing accurate judgement.In addition,the Yin contract which violates article 46 of the Law on Tendering and Bidding is not invalid,which needs to be analyzed in combination with specific cases.Secondly,article21 of the judicial interpretation [2004] No.14 needs to be applied in a limited way and its scope of application should be clarified.It is suggested that it should be abolished when conditions permit.At the same time,the judgment should not rely too much on the provisions of article 21,and a reasonable settlement standard should be established when both the Yin and Yang contracts are invalid,so that the referee will not get into deadlock when both the Yin and Yang contracts are invalid.Thirdly,the application of the relevant provisions of the judicial interpretation [2018] No.20 is conducive to solving specific problems in the process of validity confirmation,such as how to determine the substantive content of the contract and how to choose the basis for settlement in the determination of validity.Finally,it is suggested to introduce the relative invalidation system of contract and invoke other third party protection rules,to strengthen the protection of the interests of the bona fides third party.