Study On The Effect Of The "double Contracts"for Construction Projects

On February 1,2019,the Supreme People Court issued the Interpretation(2)on the Application of Legal Issues in Cases of Disputes Concerning Study on the Effect of the "Double Contracts" for Construction Projects.The introduction of this judicial interpretation can better adjust the order of the construction industry in China,especially the "Double Contracts" which is common in judicial practice.The "Double Contracts" in the construction market of our country refers to two or more contracts signed by the parties to the construction contract for the same construction project with different substantive contents.Generally,the construction contract signed by the construction company and the construction unit in accordance with the provisions of the Law of the people's Republic of China on bidding and bidding documents for the record of the construction project management department is called a white contract,while the other is a black contract.The author searched and analyzed the cases triald by the intermediate people's courts and above in 2009-2019 with "Double Contract"and "Construction Contract of Construction Project" as the key words,and found that"Double Contract" was mainly divided into three types :" pre-bid type,post-bid type and" Double Contract "in voluntary bidding project.In the past,the validity of the two contracts was adjusted only by the Law of the People's Republic of China on Tendering and Bidding and the Interpretation of the Law Applicable to Cases Concerning Disputes Concerning Construction Contracts issued by the Supreme People's Court.In practice,there are many problems of mechanized adjudication,which also make the relationship between validity judgment and settlement basis completely separate,and have not reached an organic unity.Based on the analysis and study of a large number of cases,the author analyzes the validity of "Double Contract" by combining the theory of mandatory norm,the theory of conspiracy and hypocrisy and the theory of performance stage.First,if the pre-bid type violates the mandatory norms of validity,both contracts are invalid;if not,the validity of both contracts is recognized.Second,if the post-bid type violates the mandatory norms of effectiveness,only the validity of the white contract is recognized;if not,the validity of both contracts is recognized;third,if the "Double Contract" of voluntary bidding violates the mandatory provisions of effectiveness,the invalided is invalid;if not,both contracts are recognized.Based on the above analysis and argumentation,I also give my own opinions on the basis of the judgment brought about by the division of validity,which is based on the principle of respecting the autonomy of the parties' willto the maximum extent,and combining with the actual performance situation as the basis for settlement.At the end of the paper,the author thinks that civil law and administrative law should be separated to discuss and regulate,so on the basis of the previous summary I put forward some suggestions of administrative regulation means such as judicial proposal.For the division of effectiveness of "Double Contract" in the field of construction engineering,it aims to provide reference ideas for future judicial referees to try such cases.However,the author's limited knowledge and ability still need to be strengthened,and the research on this kind of problem can only stay on the surface.In the future,I hope to have a more thorough understanding and analysis,and then put forward a more helpful point in practice.