| Due to the particularity of the construction contract itself and the absence of legal regulations,the substantive changes lack of clear identification standards and the theoretical logic of validity judgment.This paper starts from this problem,through the method of empirical research,combining the specific situation of identifying substantive change in practice,and explores the path and effectiveness judgment of substantive change identification,which is specifically divided into the following five parts.The cases retrieved on the judgment documents were analyzed and sorted out,the growth trend and appeal rate of the cases would be intuitively displayed,and the case overview was grasped at the macro level.Secondly,we analyze how to identify the substantive changes in the specific cases,sort out the identification results and the results of the effective judgment,and find that there are still different judgments in the same case in addition to the basic law of identifying the substantive change in practice.The necessity to study the problem of substantive change is explained from the macro and specific aspects.Explain the cause of the issue of material change.First,the law of social and economic development,the fierce competition in the construction market,leads to the unequal status of the builder and the construction party.Second,the specific particularity of the construction project construction contract itself,both the dual nature of public power and private rights,according to the principle of autonomy,the contract parties have the right of contract freedom,the construction project often affect the public security and public interests,so also restricted by the public power,the conflict is the root cause of substantial change.Identification path of the material change.The elements of material change are "departure from the substantive content of the contract".First,the substantive content includes the substantive content and extension stipulated by law,and explain the common types of material change,can better identify the different ways of material change;Secondly,the object of material change is the contract made by performing the bidding procedures,while noting the quantification of substantive change,only the quantitative change can lead to the material change.Theoretical logic of the validity of substantial change.Because the construction project construction contract involves social public interests,it is obviously unreasonable to fully apply the principle of meaning autonomy.The principle of interest measurement is mainly the relationship between equitable personal interests,the interests of third people and social public interests,which is the concrete embodiment of the distinction between effectiveness mandatory norms and management mandatory norms.It shows that when the bid is invalid and the substantive change is also invalid,the method of validity determination shall be determined according to the actual performance and subsequent contract or agreement,determine the rights and obligations of both parties with the help of a third party appraisal,and finally put forward the principle of judging the validity of the substantive change. |
