Research On The Application Of Epidemic Force Majeure In Construction Contract Disputes Of Construction Projects

The sudden COVID-19 in 2020 has had a great impact on the economic operation.As an economic activity with many links and long cycle,the construction of construction projects is vulnerable to this impact and produce more civil disputes.For the inducement of such disputes-how to determine the nature of epidemic factors in law,there are two main views in the academic circles: one is to constitute a change of situation,and the other is that the epidemic constitutes force majeure.This paper holds that the viewpoint of "form theory" should be adopted,and the characteristics of the epidemic situation meet the constituent elements of force majeure.Therefore,it should be recognized that the epidemic situation constitutes force majeure of construction projects,and the relevant regulations issued in China also support this viewpoint.At the same time,according to the "form theory",the normalized epidemic situation and its prevention and control measures also constitute the cause of force majeure in the construction contract.Based on this understanding,there are two obvious difficulties in the judicial practice of epidemic force majeure in construction contract disputes: first,the causal relationship between the epidemic and the damage consequences of construction contract disputes,including the identification of the period of the substantial impact of the epidemic on the construction and the causal logic of the epidemic and construction losses;The second is how to distribute the economic losses of construction projects caused by the epidemic among the parties.Based on the above difficulties,this paper puts forward the corresponding judicial application path: first,identify the obstacles during the substantial impact of the epidemic on the construction.In the case of the lack of clear agreement between the parties to the construction contract or the difficulty of reaching an agreement afterwards,the judicial organ should first distinguish between the complete shutdown caused by the epidemic and the slow project efficiency caused by the epidemic,and then adopt different definition methods,In complex situations involving different construction sequences and different types of work,the method of third-party expert identification is introduced to more accurately confirm the length of this period;Due to the long construction period of construction projects,many upstream and downstream industries involved and complex division of labor,the causal logic of epidemic situation and construction project damage consequences is often in a vague state in judicial decisions.Some judicial decisions identify the above causal logic as: the main cause of non damage caused by epidemic situation,there is no inevitable causal relationship between epidemic situation and damage results,and the indirect damage caused by epidemic situation does not constitute causal relationship,etc,The logic shown in such judicial decisions is relatively vague.This paper proposes that we should closely follow the characteristics of "inability to perform" in the provisions of the civil code and make a causal logic judgment in two steps,first determine the civil obligations that cannot be performed,and then judge whether the epidemic will lead to the damage consequences from both positive and negative aspects based on common sense,so as to further clarify this causal logic;For the distribution of economic losses caused by the epidemic among the parties,the current mainstream theories include the theory of predictability of damage burden and the theory of profit proportion burden loss,but the application of the above theories in the context of the epidemic is unreasonable.In the context of the epidemic,it is more reasonable to use the theory of manageable damage distribution to share the construction damage,This theory advocates that the damage caused by the epidemic should be shared among the parties around the principle of fairness,so as to avoid one party bearing too much losses in the case of business difficulties caused by the epidemic,which is conducive to helping all parties to the construction contract overcome the difficulties of the epidemic.