Study On Invalid Construction Contract

Construction contract is an important well-known contract,which toccupies a large proportion in the accepted by the people's court and arbitration institution Due to the long time of performance of the contract,there are many applicable laws and regulations,and the determination of the effectiveness of the contract i&more complex.When the contract is deemed invalid,it is dffficult to apply the previsions of general contract invalidity treatment when the construction project has been completed In view of the fact that the determiaation and treatment of the invalidity of the contract is the focus of legal issues related to the construction contract disputes.In terms of the legal application of construction contract,besides the contract law,it also involves the bidding law and the construction law.In view of the complexity of the judgment on the effectiveness of this kind of contract,the Supreme People's court has successively issued two judicial interpretations on the application of law in the trial of construction contract disputes.However,when dealing with such cased,there are still many disputes in practice,which are embodied in the following aspects it is difficult to identify the mandatory provisions of effectiveness and management,here is no uniform understanding of the scope of bidding,there are different understandings on whether the bidding cost is determined by reference to the average cost,base price or individual cost of the industry,the substantive content of"black contract" There are no dear provisions;the opinions of various situations of affiliated operation are different,which leads to differences when judges determine the effectiveness of the contract.In terms of the invalid treatment of the construction contract,the judicial interpretation stipulates the judgment thinking of the invalid identification and effective treatment.Although the practice considers the particularity of the construction contract,it is difficult to coordinate in the legal theory and other aspects.For the settlement of the project funds and the subject of the claim,the construction subject;s choice of the reference contract price,the recourse of the project funds,and the litigation procedure There are also many disputes in judicial adjudication.When determining the invalidity of the construction contract of the construuction project,we should combine the purpose of the relevant mandabnr laws and administrative regulations to distinguish whether it is an effective mandatory provision or an adiministrative mandatory provision,and fully explain the reasons In the judgment document As for the invalidity of the contract caused by the violation of the bidding and tendering procedures,we should comply with the development needs of the socialist market economy and make strict restrictions on the projects that must be bidding and tendering;we should define the cost price in the project price as the individual cost of the enterprise,which is more in line with the actual needs of the socialist market economy;we should ensure that the amout of the price cannot be lower than the project cost,and the time limit cauaot violate the line If we break through the above-mentioned bottom line,we should consider that the parties have signed a "black and white contract" separately For the affiliated contract.after comparing and analyzing the advantages and disadvantages of various views,the construction contract signed undter the dffiliated contract is invali d.To deal with the invalidity of the construction contract,we should wetigh the long-term interests and current interests of the construction industry and the provisions of the agreement law.We can use the improper rules to solve the problem of invalidity identification and effective treatnent because the completed project cannot be retuned,and put forward the perfect path of "profit collection and administrative punishment"In the settlement of project funds,it is necessary to distianvish the two situatiens of qualified project acceptance and unqualified project acceptance,and professional departments are required to evaluate whether the project can be repaired.In the future,the employer can also request to pay the project price by referrng to the contract agreement if it meets,the conditions of qualified completion acceptance.It is not necessary to limit the subject of project funds recourse,and it is also possible to perfect the regulations of project funds recourse by referring to the relevant provisions of subrogation in civil law No matter whether the construction contract is valid or not,the priority of the contractor and the effectiveness of the settlement agreement of both parties shall be recognized;the loasea of the parties shall be shared.contract is invalid,the liquidated dsrnagea agreement cannot be directly applied,and the losses of the parties shall be handled with reference to the loss compensation.