Research On The Effectiveness Of Dual Contract In Construction Project

Construction project dual contracts have been developing rapidly in the China's economic development andci construction project has become one of the important pillars in the China's economic development.The construction market gradually changes from the seller's market to the buyer's market.The supply and demand of the construction markets are unbalanced.The employer uses its dominant position to privately sign a contract with the contractor that was inconsistent with the substance of the winning contract.Although China's laws expressly prohibit it,it is not prohibited repeatedly.In order to eliminate this phenomenon,China's "Contract Law","Tendering and Bidding Law","Construction Law","Judicial Interpretation of Construction Contract 1" and "Judicial Interpretation of Construction Contract 2" and other relevant legal regulations provided for this condition.However,in the trial practice,new phenomena and new problems emerges one after another and the relevant laws and regulations are still not perfect enough to determine the validity of the dual contract of the construction projects.Therefore,this paper will study the effectiveness of dual contract in construction projects.The first part is an overview of the dual contract of the construction project.First of all,the concept of construction projects dual contract is defined.One contract is used for government filing and one contract is used for actual performance by both parties.On this basis,the characteristics of construction projects dual contract are specifically grasped from three aspects: subject,content and form.The second part is the analysis of the manifestation and causes of the dual contract of the construction projects.There are three main forms of the dual contract signed by both parties.namely,price reduction,construction period reduction and illegal subcontracting and illegal subcontracting.The root of this phenomenon lies in three aspects: the construction contract with the nature of public power,the reasons of both parties,and the government intervention.The third part is the analysis of the standard of dual contract of construction projects.The identification standard of the dual contract of construction projects is substantive change,also known as "substantive content inconsistency".The content of substantive deviation and non substantive deviation is analyzed from two aspects: substantive scope research and substantive degree research.At the same time,it focuses on distinguishing the dual contract of construction project from the situation change.Although the content of situation change may involve in the specific content of substantive change,the situation change is a legal change based on objective conditions and is not a dual contract for the construction project.The fourth part is the effectiveness analysis of the dual contract of the construction projects.Construction projects are divided into compulsory bidding projects and voluntary bidding projects.In the compulsory bidding projects,when the winning contract is valid,the positive contract is valid and the negative contract is invalid;when the winning contract is invalid,both the positive and negative contracts are invalid.This is the general rules for determining the effectiveness of dual contract in construction projects.There are two opinions on whether the determination of the effectiveness of the dual contract of the voluntary bidding projects complies with the rules for the determination of the effectiveness of the general construction project: one is based on the expression of the true meaning of the parties;the other is based on the rules for the determination of the effectiveness of the general construction projects dual contract.There is another type of dual contract that has not been put on record through bidding,which focuses on the evaluation of private law.From the theoretical analysis of collusion and false intention,the Yang contract with false behavior is invalid and the Yin contract with true intention of both parties is effective.