| The using of ‘formal and substantial contracts’ is a relatively common social phenomenon.It refers to the fact that two parties sign two forms of contract,one is open and the other is private.Problems arising from formal and substantial contracts have been widely seen in contract disputes such as second-hand housing transactions,equity transfer,and construction projects.When dealing with ‘formal and substantial contracts’ cases,it is logical to first identify the validity of formal and substantial contracts and then resolve specific contract disputes.At present,China has not reached a consensus on legal application and determination of formal and substantial contracts.This led the author to think about this issue,to explore why the effectiveness of the ‘formal and substantial contracts’ is difficult to determine,and why it is difficult to form a relatively uniform refereeing standard in practice,and whether the ‘formal and substantial contracts’ can be incorporated into the framework of the effectiveness system of China’s Contract Law.There is a clearer solution to its effectiveness.For the ‘formal and substantial contracts’ problem,the author chose to build a construction contract because construction project was a high-yielding area of ’formal and substantial contracts,’and secondly,the ‘formal and substantial contracts’ of construction project wastypical and had a wealth of research cases.The study provides a summary of the full judging point of view.Finally,the relevant laws and judicial interpretations concerning the ‘formal and substantial contracts’ of construction project were formulated earlier and more distinctively.At present,the understanding of ‘formal and substantial contracts’ is relatively clear in theory and comparative law.In a broad sense,‘formal and substantial contracts’ is known as conspire hypocritical act.However,China’s current Contract Law does not contain provisions on the effect of false intentions under the conspiracy,and the newly promulgated General Principles of Civil Law is the first time to identify the effectiveness of legal acts expressed in the false intention of conspiracy and it is also an embodiment of theoretical progress.This article is based on the effectiveness of ‘formal and substantial contracts’ of construction projects.It is also based on the particularity of construction project itself.At the same time,the case of rich judicial practice and the phenomenon of ‘different judgments in the same case’are more sufficient to illustrate the necessity of determining the effectiveness of‘formal and substantial contracts’.This article has not increased the legal provisions to solve such problems as a solution,but in the existing legal framework,try to use the provisions of China’s contract effectiveness system to determine the effectiveness of the construction project ‘formal and substantial contracts.In the first chapter,this article defines the concept of ‘formal and substantial contracts’ for construction projects,and illustrates proposes of distinguishing ‘formal and substantial contracts’ from ordinary contract changes.‘formal and substantial contracts’ means that both parties sign two contracts for the same construction project.After the tendering and bidding process,one contract is signed for record,and the other is signed privately and for actual performance.The difference between the two contracts are the extent and scope of the changes.The actual implementation is under the substantial contract.The substantial contract has substantial changes to the‘formal contract’,which may cause the extinction of the original relationship between rights and obligations,creating new rights and obligations.The second chapter discusses the causes of using formal and substantial contracts in construction project which involve the complicated conflicts between legal relationships and legal relationships in construction projects,especially the conflicts between civil legal relations and administrative legal relations that lead to public rights and private interests.The conflict of rights leads to the issue of ‘formal and substantial contracts’.At the same time,it also discusses the difference between the protection of bids and the contract system and the conflict between protection interests and conflicts have further intensified the contradiction of ‘formal and substantial contracts’.The conflict between the two systems is actually a game between the two legal relationships.The third chapter of this article,through the search for judicial cases,illustrates the judging point of the ‘formal and substantial contracts’ in construction projects in practice,and judging from the judgment point of view that the ‘substantial change’judgment should be judged from both the degree and scope of the change.Then it pointed out that the Explanation of Article 21 of the Interpretation of the Supreme People’s Court on the Application of Legal Issues in the Trial of Construction Project Dispute Cases(hereinafter referred to as Article 21 of the ‘Explanation’)shall have effect on the validity of the ‘formal and substantial contracts’ for the identified construction project during the trial.Influences,further clarify substantial the deficiencies of Article 21 in dealing with the effectiveness of the ‘formal and substantial contracts’ of construction projects,first clarify substantial that Article 21 of the ‘interpretation’ used by some courts to identify the effectiveness of construction projects ‘formal and substantial contracts’ does not constitute a ‘formal and substantial contracts’ for construction projects.The effectiveness was confirmed.It only established a referee standard for how to settle settlement disputes.From the clause,it also shows that the constructors have reservations about the effectiveness ofthe construction project ‘formal and substantial contracts,’ not negative attitudes;second,the ‘interpretation’ Article 21 does not stipulate the content of substantive changes.Substantial changes are judges’ exercise of discretionary powers in trials,but it is necessary to clarify the scope and extent of substantive changes.This is also true.Restrictions on the discretion of judges;finally,Article 21 of the Interpretation is to facilitate the settlement of work in reality.Settlement of disputes to solve the problem of arrears of wages on migrant workers in construction projects and avoid a group dispute caused by the way,the purpose of its formulation is more from the perspective of social management,and can not be used as a promotion to determine the effectiveness of contracts.This palliative method is also stretched in solving other problems in the construction project contract.The fourth chapter is the core part of this article.It mainly revolves around the‘PRC Contract Law’(hereinafter referred to as the ‘Contract Law’),the ‘PRC Bidding Law’(hereinafter referred to as the ‘Tendering and Bidding Law’)and the Judiciary explanation to discuss the effectiveness of the ‘formal and substantial contracts’ in China’s construction project.In the ‘formal and substantial contracts’ of construction projects to the provisions of the validity system in the ‘Contract Law’,it is first necessary to clarify the reasons for the establishment of the contract invalidation system and the difference between the contract is not established and the contract is invalid.The invalidation of the contract is actually a manifestation of the will of the state.It is the result of state intervention.If the contract is not established,it can be cured by actual performance.However,the invalidity of the contract is for established contracts.Based on considerations of national interests,public interests,etc.,it is legally given a negative evaluation.Contract invalidation is different from revocable.Although the contracts are all established contracts,their application needs to be differentiated.In fact,the two laws are different between the interests of the parties and the state and the public interests.If the interests of the public and the parties are between law selection and protection of public interests,the law will give a negativeopinion on contract;if the interests of the parties are more valuable of protection compared to the public interests,then the law will give the contract continued evaluation and give the contract Make up for the opportunity.After the difference contract is not established and the contract is invalid,the effectiveness of the ‘formal and substantial contracts’ for the construction project is determined,and it is clear whether the ‘record’ does not affect the effectiveness of the ‘formal and substantial contracts’ of the construction project.Through the analysis of the hypothetical meaning of the hypocrisy,combined with the provisions of the ‘General Principles of Civil Law’ and the differences between the ‘Contract Law’,Article 52,Sections 2 and3,and the meaning of the conspiracy,the ‘Illegal Purpose of Covering Legal Forms’ and the Conspiracy The meaning of the application indicates that the application is more conformable,and thus it is determined that the ‘formal contract’ applies the‘illegal purpose of concealing illegal purposes in legal form’;the ‘substantial contract’ is analyzed on the basis of the fourth and fifth paragraphs of Article 52 of the ‘Contract Law’.Effectiveness: The criteria for clearly determining the nature of mandatory regulations should proceed from the two dimensions of ‘necessity’ and‘seriousness’.At the same time,the determination of ‘substantial contract’ is not,of course,invalid,but it should be recognized as valid in principle.Finally,in conjunction with the discussion in Chapter 3,it is clear that Article 21 of the Interpretation should be treated with care.It should be clear that the nature of the interpretation is only the refereeing rules for handling project settlement clauses.It does not represent that the Supreme People’s Court should deal with the ‘formal and substantial contracts’ of construction projects.The attitude of the validity of the contract.The conclusion part of this paper is a summary of this article.This article concludes the construction project ‘formal and substantial contracts’ through the analysis of the collection and collation of trial points of view and the application of false intentional expressions,as well as the analysis of the ineffectiveness of thecontract under Article 52 of China’s current Contract Law.In the ‘Contract’,the‘formal Contract’ shall be deemed to be invalid in principle,and the ‘Substantial Contract’ shall be deemed to be valid in principle. |
