Retrospect and Prospect

- written in the "Supreme People's Court on the law applicable to construction contract dispute cases the interpretation" promulgated three anniversary

Author Feng Xiaoguang

A, achievements

"Interpretation of the Supreme People's Court on the law applicable to construction contract dispute case" (hereinafter referred to as the "interpretation") shall be implemented as of January 1, 2005, has been more than 3 years. Looking back over the past 3 years, local people's courts at all levels in strict accordance with the Supreme Court deployment, combined with the actual situation in local and case, seriously implement the "explanation", and made remarkable achievements, significantly improve the quality of the case. Embodied in: from the trial work of the people's court, the Supreme Court and the local court clear and unified law enforcement idea, unified law enforcement standards and scale, the judge to exercise discretion behavior further standardization, enhance the judges to hear such cases the level of business, government departments, the building construction industry industry, the real estate industry and the community generally believe that the "interpretation" pragmatic, content of legal interpretation discretion properly, so case closed society, justice and efficiency of the trial work to further enhance. "Interpretation" provides the legal guarantee for effective to rectify and regulate the construction market, made due contribution. At the same time, the rapid development of the construction industry also has some problems, like the payment in arrears and wages of migrant workers, defects in construction quality and construction safety. These problems is not only a legal problem, but also economic issues, social issues, political issues, the Party Central Committee, the State Council, shall attach great importance, establish and adopt comprehensive measures many palliative measures, multi pronged, comprehensive renovation, has achieved remarkable results. The Supreme Court in the judicial field, the essential position with the party and the state to regulate the construction market economic order and serve the overall interests, has taken to "explain", from the protection of migrant workers legal rights notice, participate in the work of the joint meeting, migrant workers issued guidance case and other effective measures, strengthen the guidance of the trial work respect, obtained remarkable result, take practical action to consciously serve the overall situation, has won universal acclaim national authorities and the social from all walks of life.

Facing the reality, we should also see, in different regions, different judges in the implementation of "interpretation" ability and level is not balanced, this or that problem also exists in the process of application of the court system, there are differences in the understanding of individual provisions inconsistent and application, and even the existence of errors in understanding the need to further clarify and unify the thought. The above problems is a normal phenomenon in the development of things, to analyze and solve problems will be the focus of our future work and power. In 3 years, the construction market appeared a lot of new cases, of these new circumstances we understand and research is not enough, though in many cases made a specific judgment, but has not yet been summed up the trial experience and trial rule corresponding, measured the applicable law in some cases are also worth of peace talks. "All the problems of interpretation" itself cannot solve the trial in the construction contract disputes, many old and new problems "interpretation" is not covered, still need a local people's court judges give full play to the subjective initiative, rational use of discretion, in accordance with the law or legal principles, the spirit of the case. There is reason to believe that, when conditions are ripe, the Supreme Court will be timely to judicial interpretation, the use of guiding cases or other ways to guide the new situation in the construction contract dispute case.

Looking to the future, we should see, the people's court construction contract dispute cases have a lot of things to do, especially to further cooperate with the central tasks of the party and the state and for the construction market rectification measures taken, from politics, the overall situation, speak stable height of hearing such cases; for the Party Central Committee, the State Council the National People's Congress advocated, regulate the construction market, provide a strong judicial safeguards to prevent arrears works, and protect the interests of migrant workers stage political task. The current construction market is in a new stage of deepening reform, innovation system and mechanism, reform measures will be introduced gradually, also must reflect the court trials to, regarding this, we should have a clear understanding, should pay attention to the changes of the construction market, careful analysis of the situation, especially the new situations, new problems the legal relationship between the stripping out, analysis and study, to plan, to actively respond to. At present, "construction law", the construction contract, the Ministry of construction rules are under revision, the construction industry law changes, should also become the focus of our attention. Looking to the future, we should keep pace with the times and enterprising spirit, constantly improve the ability and level of the trial of such cases in the trial, to strive to achieve the unity of construction contract dispute cases of legal and social effects.

Specifically, execute "explain" outstanding achievements, embodied in the:

(a)Regulate law enforcement behavior, unified law enforcement scale.

"Explain" before the promulgation and implementation, because the legal provisions are too principle, the lack of legal basis for specific,

All levels of court to void the contract project settlement standard, underwritten clause, applicable to civil sanctions measured, identified the actual completion date criterion, whether owed project payment payment of interest and interest in standards, "black and white" contract so that the standards relating to the construction contract dispute cases the main focus of controversy on understanding not unified, applicable law and the standards are inconsistent. In such cases the presence of a large number of "co different sentence" or "abnormal case with the sentence" phenomenon, caused by parties to not know what course to take. It is difficult to enterprises from the judgment results to sum up the experience and lesson to regulate the operation of the parties is difficult, according to the judgment of the Court precedent cases to predict, the existence of these phenomena, directly affects the people's court judgments of social credibility. The existence of these phenomena, the people's court or a judge is not mainly caused by lax enforcement, but due to the lack of clear standards of law enforcement of specific cause. Because the legal provisions are not clear, the judge to exercise discretion of space and room must be great, the judge can only according to their own understanding to the law to judge the case; as long as the result is consistent with the principles of law, spirit, judgment and logical fully, the judge's different judgment should be respected and protected. Discretion is the jurisdiction of the soul, even if the laws and regulations and detailed, also can not exclude the right of discretion of the judge; discretion exist only standard, cannot limit or cancel the problem. Many construction activities of construction market is relying on the practices of the industry and enterprise self-discipline, standardize business practices. Some of the universal approval, construction enterprises be accustomed to practice, practice is illegal, illegal behavior, such as contracts, loan quality, "black-and-white contract". For the construction industry pass off the sham as the genuine reality, some judges to identify, errors in judgment, this is one of the reasons causing inconsistent standards of law enforcement. Therefore, grasp the discretion of judge discretion, scale inconsistencies are many reasons, "co different sentence" is inevitable; different judgment but produced trial activities in normal, at parties, lawyers, public society extreme case in comparison the conclusion, on the to the court for the public do not understand, do not trust the embarrassing situation. "Explain" after the enactment of the law enforcement standards, the construction contract dispute case inquisition and scale, to explain the doubts, difficult problems in judicial practice, the people's court to regulate law enforcement behavior, the discretion of judges has played a positive role. From "explain" the promulgation and implementation of judicial practice of 3 years, the law enforcement situation is smooth, without major controversy, and related with the construction contract interests of each industry and court public reflect the social good, basically reached the formulation of "interpretation" purpose, therefore, we feel gratified.

(two) contributed to the central task of implementing the party and the country to rectify and regulate the order of the construction market.

The construction market is begged for be more than, the seller's market, the construction enterprises to contract projects is very competitive. Construction enterprises to contract projects use unscrupulous divisive tactics, disorderly competition results in illegal, illegal phenomenon is very common, "construction market confusion, not only seriously jeopardize the project quality and safety, affect the investment benefit, and the corrosion of the contingent of cadres..."[1][1], shown as "engineering quality and safety situation is still grim, arrears and wages of migrant workers is serious, project bidding in the 'black and white contract' problems, corruption construction field is banned repeatedly more than"[2][2]. To this end, the state power department increased regulate the order of the construction market dynamics, obtained apparent effect. Performance: 2003 year in November 6th, the NPC Standing Committee on the "construction law" law enforcement has made "the NPC Standing Committee law enforcement inspection group on the examination of people's Republic of China Construction Law > implementation of the report". The general office of the State Council on February 7, 2006 to make "notice" Office of the State Council on further rectify and regulate the construction market order, the Ministry of construction also made "on the further rectify and regulate the construction market order" and "opinions on further rectify and regulate the construction market order.". These measures form a combination of boxing, rectify the construction market, has achieved remarkable results.

From the judicial point of view, the construction industry and it industry in comparison of illegal, illegal phenomenon is more widespread, more serious, in addition to the NPC Standing Committee resolution points out illegal, illegal form of expression, also showed: the construction market, and there are a lot of arrears works (including professional subcontracting, labor subcontracting engineering, material supply section), contracts, illegal subcontracting, borrow a qualified units to the name of the project, unauthorized use, in violation of "acceptance of Building Engineering Bidding Law" provisions in the act of unfair competition, in violation of the national standard of mandatory provisions of law, shoddy, reduce the standard of quality building materials etc.. These acts have seriously disrupted the construction market management order, destroys the fair competition order of market main body, has hindered the construction industry's sustained and healthy development; at the same time, but also affected the normal and healthy development of other industries, like the people a lot of construction engineering, arrears will inevitably lead to the contractor, in the payment of bank loans owed by material supplier delivery, labor subcontracting enterprises projects, labor subcontracting enterprises may be owed to migrant workers wages, formed the "triangle debts", the healthy development of other industries related constraints and objective of the construction industry, eventually forming a knot of the development of the national economy. In this regard, the organs of state power already have the understanding, from politics, the overall situation, a high degree of stability, proposed a strategy to regulate the construction industry, put forward specific requirements to all departments. People's court as the lag handle disputes judicial organs have the obligation and responsibility to respond to the party and the national call, in the post trial work on regulating the construction market order rectification DOSOMETHINPREVIOUSLYUNRELEASED. It should be said, "is embodied the political interpretation of" promulgated and implemented, is one of the DOSOMETHINPREVIOUSLYUNRELEASED forms.

From the "interpretation" of the content, "explain" first of the construction enterprise qualification certificates, loan quality, contracts, illegal subcontracting and the construction projects shall not bid or bid tender invalid in violation of laws, administrative regulations of the mandatory provisions, the contract shall be deemed invalid list, to be highlighted, reflect the special court attention to these violations of the most common construction market. The provisions of article fourth the main construction contract violation of civil substantive law shall be subject to civil sanctions. The provisions of article thirteenth engineering without approval, the unauthorized use, should bear the corresponding legal responsibility. Article twenty-first defines the "black-and-white contract", is intended to help judge screening "black-and-white contract in the form of normative documents". The provisions of article two, reflects the attitude construction industry to sanctions violations of jurisdiction. At present, the construction market the employer malicious arrears means mainly as follows: after the completion of the project contract delays in approval, malicious stop settlement conditions achievement; completion of settlement construction documents submitted after the employer shall, without delay. In this regard, "explain" article fourteenth the employer to delay acceptance as a delaying payment methods, increase the employer liability. Twentieth the employer not delay the audit, in accordance with the provisions stipulated by the contract offer direct construction itself is on the employer shall delay penalty. Article second paragraph twenty-sixth to prevent arrears services subcontracting, solving the problem of wage arrears for migrant workers to provide relief way special, reflects the people's court to stop payment in arrears, guarantee contract fulfill in good faith the position. Nineteenth the provisions of the construction of the visa, on was objective to promote the construction enterprises to improve management mechanism, at the same time, reflects the respect of construction industry practice attitude.

"Explain" the promulgation and implementation of the rapid development of 3 years of law enforcement practice objectively promoted the construction of healthy, performance for the bearing, the enterprise management to scientific and standardized development. The most common visa management in construction market, for example, Party A Party B to the site representative or project manager for visa management level and "explain" the promulgation and implementation of earlier, more standardized, more scientific and reasonable management mechanism. Some Party A to implement classification management system for visa, for small quantities, small projects, 3 days short period and other small items, by the party representatives on site visa; on more than 3 days duration, more than a certain level of engineering quantity, project quality, project cost, design of the project price impact things change, should the Party B to declare the cause for the change, by the party representatives in the site after the audit, audit procedures to perform the contract agreed upon approval. The owner of the visa classification management mechanism, standardize the visa management authority, at the same time, also provide evidence for possible future disputes, which is convenient for future litigation, the court found the facts, to distinguish between right and wrong. And the corresponding is, construction enterprises have strengthened the project manager department responsibility management mechanism; the implementation of business management layer and construction layer separation in the enterprise; the enterprise and project manager responsibility, right, benefit between the interests of balance between to add fine, more in line with the architectural rules arrangement, construction enterprises internal management level improved significantly, the construction industry presents the operating from the extensive operation to the intensive transformation trend. It should be said, the employer and contractor management mechanism to explain aspects of change, "" not; the reason, the behavior of enterprise to adapt to "explain" provisions, the referee thought to coincide with the judicial organs, cause this is also one of enterprise reform. This motive objectively promoting the transformation of enterprise standardization, legalization direction, this also with the Supreme Court "explain" formulation, consistent with the real goal to regulate rectify the construction market situation service.

New changes in two, the construction market and the countermeasures.

(a) the achievements and problems

"Explain" the promulgation and implementation of the 3 years is the construction of the development and change of the market change rapidly in 3 years, during the period, there have been many new situations, new problems. Changes in the objective situation will influence the construction market management behavior, must also work to the people's court trial effect. In this regard, we should understand the situation, grasp the information, unified thought, actively respond to. These changes are positive, for the development of the construction industry has brought vigor and vitality; but some change is negative, hinder the sustained and healthy development of construction industry. Reflected in the:

Positive changes in the construction industry: one is already in the works (including labor subcontracting) in the vast majority of repaid, default behavior happen less sharply. A lot of the problem of engineering payment in arrears for years plagued the healthy development of the national economy, the strong leadership of the CPC Central Committee, State Council, various measures have achieved remarkable results, the historical arrears repaid arrears of basic behavior; new also significantly reduced, the credit status of construction enterprises improved significantly. Two is the construction enterprise management level improved significantly, more fine, standard management behavior. Three is the enterprise law consciousness obvious enhancement, forensic work inside enterprises strengthened. Like "explain" the twentieth regulation: the agreement between the parties, the Employer receives completion settlement documents, fails to reply within the agreed time limit, as recognized by the completion of settlement documents, in accordance with the agreement. The Contractor's request in accordance with the completion of the settlement documents of project price settlement, shall support. The Ministry of Construction promulgated the "construction contract" general terms stipulated in article 33.3, does not belong to "explain" the provisions of the "parties", "interpretation" is not applicable regulations, cannot offer in accordance with the contract settlement price. In this regard, the Supreme Court in (2005) the people He Zi No. twenty-third "on the receipt of the completion document, does not reply within the agreed time limit, whether as a clear recognition of completion settlement file reply" in general terms: thirty-third of the third paragraph of the Ministry of construction of the project construction contract format text in the agreement, cannot simply deduce, both parties have the Employer receives completion settlement documents within a certain time limit does not reply, expressed as documents submitted for approval of completion settlement of the Contractor's consistent meaning, contractor shall submit the completed project settlement file cannot be used as the basis for settlement. In the trial practice, the construction contract many parties in accordance with the construction contract signed in the Ministry of Construction promulgated, in terms of form of calligraphy, the price will be added delay contract price as the settlement according to the content in the construction contract. The Supreme Court's judgment of second instance cases, also according to "explain" the twentieth regulation, according to the special stipulation in the contract format, the full support of the contractor claim according to the quoted price of Engineering precedent. This example can be seen, showed that the addition of handwritten content in the contract on the behavior of the strong, quite a part of legal consciousness, legal management level of enterprises is also very high. Also should see, the construction enterprise for the pursuit of profit maximization, intent to illegal packaging for legal "legal consciousness" is also very strong, which purpose is to circumvent the law consciousness is very strong. Like "explain" the seventh regulation, labor contract not qualitative invalid for subcontract to affirm. In the trial practice, the existence of a large number of construction enterprises intention will subcontract, illegal subcontracting illegal behaviors such as packaging for the subcontractor, intent to make illegal behavior legalization, we should keep a clear head. Although the construction management level and legal awareness has been enhanced, but the industry as a whole situation, the construction industry has not reached the standardization, legalization of the target.

The existing problems and the Countermeasures:One is the construction of illegal, illegal phenomenon still exists, has not been fundamentally changed."Black and white contract" number is further increased, signed the "black-and-white contract" means a more subtle. In bidding, bidding agency tender, leak Biaode, tender, bidding agency and the tenderer malicious collusion, unfair competition acts of malicious collusion between bidders exist. In the name of affiliation, pool, internal form of contract by construction enterprises qualified to undertake the construction of the more common, subcontracting and subcontracting phenomenon did not significantly reduce the violation. In short, the phenomenon of illegal construction industry remains widespread, has not been fundamentally changed, some illegal, illegal behavior and the development of the spread of the trend, and even some irregularities also as a successful business model has been strengthened and promotion.

Since the party and the state to regulate the construction market economic order, the people's governments at all levels to strengthen the management of tendering and bidding of construction engineering. The amount of the minimum cost of bidding projects around the government made clear, not according to the people's government to fulfill the construction enterprise bidding procedures, the people's Government may take to reduce the construction enterprise qualification, shall not be issued construction permits and other administrative penalties. In this regard, construction engineering contract for the response to the call of the government or from administrative punishment, active or to bidding tangible market performance of construction bidding and bidding legal formalities. From the appearance characteristics, nearly 100% projects are performed in the bidding of statutory procedures, to further regulate the construction market, "Bidding Law" has been effectively implemented; in fact, fulfill the project bidding procedures, there are a large part of belonging to the "name of Dr. secret", "black and white contract" is signed the illegal behavior, to new forms of development spread. "The main reason for the spread and development of black and white contract" is the contract, both parties intent through a "black contract" to achieve through the normal bidding procedure not to. In accordance with the provisions of the "construction law" thirty-seventh article: a bid evaluation committee organized according to law shall be responsible for. According to the tender project, the bid evaluation committee shall be composed of experts representing the tenderer and the relevant technical, economic and other aspects of the composition, the number of members of 5 or more singular, the expert technical, economic and other aspects of not less than the total number of members of 2/3. Experts mentioned in the preceding paragraph shall be engaged in the related work in the field for 8 years and has a senior professional title or of an equivalent professional level is determined by the tenderer, list of experts from the relevant departments of the State Council, the relevant departments or provinces and autonomous regions or municipalities directly under the central government provides; general bidding project can take random way, special tender project can be determined directly by the tenderer. A bid evaluation committee interested person may not enter the project with the tenderer shall be replaced already entered. The members of the bid evaluation committee shall be kept confidential list until the winning bidder has been determined. Rule thirty-eighth: a tenderer shall take necessary confidentiality measures, ensure that the bid evaluation is carried out in strict secrecy. Any unit and individual shall illegally interfere, process and result of the bid evaluation. The above provisions indicate that, the bid evaluation committee and the evaluation process is the tenderer cannot completely about candidates for winning the bid evaluation committee, is recommended or direct determination. The tender document has a base bid price, bid for the reasonable low price, "rational" is in the construction cost on retaining a minimum profit of construction enterprises, construction enterprises shall not be lower than the cost price bidding, thus ensuring the survival and the healthy development of construction enterprises. "Bidding Law" forty-first stipulation: the applicant bid shall meet the following conditions: to maximally satisfy the various comprehensive evaluation standards prescribed in the bid invitation documents: to meet the substantive requirements of the bid invitation documents, and accredited lowest tender price; but except the tender price below cost. This article explains, bidding bid can not be lower than the cost. The current construction market is a seller's market, the construction enterprises to contract the project competition is very fierce, at the same time, the construction industry is a low profit industry, industry profits only in the project cost about 2%. The relationship between market supply and demand determines the under determined in the bid invitation documents and the bid price of space, there are many construction enterprises are willing to undertake a project less than bid price; at the same time, the people also want to save the maximum housing expenses, willing to put out the project to the lowest price of the construction enterprise. So, the reasonable low price is lower than the intention, even for less than the cost of construction enterprises of the ultra low price, and look forward to achieve the maximum cost saving the people fit in easily with, the result is the two sides signed the "black-and-white contract", in order to achieve the common pursuit of the implementation of "black contract" signing purpose. The employer in the bidding process and construction companies signed below the lowest reasonable low price or less than reasonable schedule of contract is the "black contract". If the people's Government of the construction market norms and rectification of the intensity, in addition to "invite public bidding bids law" third stipulation must tender conditions, between the tender, bidders can through consultations form signed construction contract, the parties will not be signed two copies of the content inconsistent "black-and-white contract". In fact, such as no need to fulfill the bidding procedures, as long as the construction enterprise is willing to do, the developer on the project cost to get low, sign the much low; only in the government law enforcement, bearing, the parties had to sign the "black-and-white contract form" to achieve their objective. In fact, with the people's government to regulate the construction market efforts, "black and white contract" quantity reduce not only, and was spread and development trend. At present, construction contract dispute cases the Supreme Court concluded, more than half of the cases are "black-and-white contract". Can imagine, the construction contract dispute cases in local courts also affirmed the existence of a large number of "black contract".

Construction market, there are a lot of "black and white contract" to increase the difficulty of court. Is mainly reflected in: "how to grasp that black contract" standard? Construction contract more than two are "black contract", the completion of the project acceptance, the people's court shall refer to the settlement project price agreement which a contract? For the "black and white contract" the price of the people's court should be how to deal with? The construction contract more than two are "black contract", the people's court shall refer to the settlement project price agreement which a contract? For more than two of the "black" contract price and how to deal with? The tender documents, the bid winning notice, for the record contract does not agree, that "how white contract" standard? The tender documents, the bid winning notice, for the record contract does not agree, that "how white contract" standard? The contracting parties, in order to avoid the "black-and-white contract signing legal consequences", "black and white contract" signed a more subtle way, like the employer for the real estate developers to buy a house, buy Construction and identity to significantly higher than the average market price of the employer (developers) property development; construction enterprises free of charge for the employer to residential facilities; after winning the bid, the contractor to make large profits in the statement of commitment; the contractor "voluntary" made for the owners to donate promise etc.. The nature of these actions are winning the bid after the signing of the construction contract price reduced the amount, are the substantive conditions of contract from the bid winning notice records and further contract behavior. In the trial practice, "the majority showed black contract" for less than the price; sometimes it is higher than the price, its purpose is to evade the statutory tax. These hidden form signed the "black-and-white contract" to the people's court judge and "black-and-white contract" difficulty, therefore, courts at all levels actively, formulate and taken many effective trial scheme, obvious effect.

Two is the "interpretation" in the process of application, for individual provisions understanding existence deviation.Like "explain" twenty-sixth

Paragraph second: the actual construction to the claim as the defendant, the people's court may add subcontracting or illegal subcontracting as a party to the case. Responsible for the actual construction project cost range only in pay less in the employer. Background and scope of application for this paragraph, in October 27, 2004 the Supreme Court vice president Huang Songyou "explain" answer the reporter asks[3][3] talk about this problem has to be clear. Huang, vice president: "clear" interpretation "is the twenty-sixth in order to protect the legitimate rights and interests of the migrant workers to make the provisions of". On the issue of privity of contract, also said "according to the relativity of contract, the actual construction shall stand to the right contract contractor, and shall not to contract claim. But looking from the actual situation, some contractor subcontracts charge a management fee, no settlement or settlement does not claim the rights, because the actual construction did not contract with the employer, which leads to the actual construction people had no way to get the project, while the actual construction people cannot get the project will directly affect migrant workers wages. Therefore, if do not allow the actual construction people to contract claim, is not conducive to the protection of the interests of migrant workers". According to Huang vice president's speech, "explain" the purpose of legislation in the second paragraph twenty-sixth is mainly solved by migrant workers consisting of actual construction in the relative contract, because One's whereabouts is a mystery., bankruptcy, credit deterioration due to the lack of ability to pay, the actual application of workers have no complaints situation next, for the actual construction of special relief way to provide people advocate the project cost, allowing the actual construction of a breakthrough of contract relativity, bring to the employer, the total construction contractors defendant. "Explain" why make such provisions, the civil trial work to Scientific Outlook on Development as a pointer, for the construction of a harmonious society and solve the livelihood of the people the service idea of socialist rule of law, the people's court within the current legal framework to fully protect the interests of migrant workers, is embodiment of political, the overall situation, stable. Xiao Yang Dean represents the Supreme Court to the National People's Congress made the court work report also said the Supreme Court made judicial interpretation, to provide the special judicial remedies for the protection of the interests of migrant workers, and yellow vice president should remember to ask spirit perfectly.

From a legal perspective, foundation of the creditor's rights contract is the relativity of contract, property right is the basis of right in rem. Allow parties to claim to not have a contractual relationship with relative trial the plaintiff to break through the contract, from the legal principles and legal provisions of speaking is defective. "General principles of civil law" eighty-fourth stipulation: debt is in accordance with the provisions of the contract or law between the parties concerned, the specific relationship of rights and obligations. Entitled to the rights shall be the creditor, the obligation of the debtor. A creditor has the right to demand the debtors to fulfill their obligations in accordance with the provisions of the contract or law. That is to say, "relationship" certain rights and responsibilities are generated in the contract between the parties, the relativity of creditor's rights is the basic attribute of debt are. To remedy the defects of breakthrough of privity of contract has the legal principle theory of law, applicable "explain" twenty-sixth paragraph second is subject to strict limitations. Firstly, the actual construction is not permitted in principle to bring do not have the contract the employer, general contractor shall be the defendant; only in the actual construction contract bankruptcy, One's whereabouts is a mystery. actual construction did not mention to the employer or the general contractor is the defendant's lawsuit is difficult to protect the rights of the case, to the actual construction people bring to the employer or the general contractor and no contract between the parties as the defendant. Complete and accurate understanding of "explain" the 26 provisions of the second paragraph, the provisions of paragraph first should be combined together reading, only in this way can the correct application of this law. "Explain" the twenty-sixth provisions of the first paragraph: the actual construction to subcontract, illegal subcontracting someone accused the prosecution, the people's court shall accept the case according to law. Construction market, the actual construction contract quite is the subcontractor or illegal subcontracting, between them is the other party to the contract. Litigation contract between a person is right, comply with the "Civil Procedure Law" stipulates that the 108th case acceptance conditions, this does not need to be clearly defined for judicial interpretation. "Explain" the twenty-sixth reason in paragraph first to need not explain content to make arrangements, and be clear in the first section, its purpose is to prompt the courts at all levels in principle does not allow parties to break the relativity of contract lawsuit, should be in accordance with the principle of contract relativity ordered litigation, which is the dominant action direction in accordance with the law the. "Explain" the twenty-sixth paragraph second is strictly applicable conditions, supplementary provisions for the protection of migrant workers is to benefit, cannot therefore provisions exist and deny the principle of statutory contract relativity. Secondly, apply "twenty-sixth" interpretation of the provisions of the second paragraph of the first hand, principles of contract and all subcontracts shall be invalid. "Contract law", "construction law", "construction quality management regulations" and other laws and regulations, the following concept used in the conceptual expression: contractor contractor, construction companies, construction, project contracting units, there have been no "actual workers" statement. This is expressed as "new concept" creation of explanation, in order to express the actual contract invalid work units or individuals for the actual construction, the actual construction may be legal, non legal person, partnership, natural persons. Using the concept of "actual construction people" itself means "actual construction people" involved in the signing of the contract is invalid, the actual construction contract parties, including contracts, illegal subcontracting, no illegal use of construction enterprise qualification qualified name in violation of laws, administrative regulations of the mandatory provisions. The scholar thinks, the avoidance of the contract, the relative weakening. "Interpretation" is one of the second section of the twenty-sixth conditions is the principle of general contracting and subcontracting all hands, illegal subcontracting contracts are invalid, so as to conform to the contract relativity principle of weakening. If the contract effective, in accordance with the principles of contract law, the contract shall be effective comprehensive actual performance; the employer in the contract only to the contract relative persons have the obligation to contract, people do not burden obligations; if not, then the validity of the contract is not complete, there are defects. The contract relative person in addition to the burden of the contract obligations, but also the burden of outside contract obligations, it is unfair to the parties to the contract, can not be expected to contract, can not guarantee the safety of transactions. The construction contract and other contracts in comparison, is special, special in the subcontract, illegal subcontracting and started the total contract comparison, although belonging to two independent legal relationship, but the relationship between them has implicated. As between the sub contract to contract, and in general, it is difference existed in the project cost, other content, like the scope of construction, quality standard, duration, liability for breach of contract and the main provisions of the contract are basically the same. The subcontractor, illegal subcontracting human overhand and underhand two copies of the contract parties, the existence of these features for a certain basis of invalid contract relativity breakthrough treatment scheme of. Third, do not allow the use of actual construction name, to "explain" the second paragraph twenty-sixth name, brought to the employer or the general contractor shall be the defendant's lawsuit, malicious damage to their legitimate rights and interests. At present, the actual construction does not have no complaints case in the trial practice, the contract relative people have paid engineering strength, while the plaintiff only to the employer for beyond the contract amount illegal interests, even the contract phase of malicious collusion, or is conspiring to blackmail and impose exactions on to the employer or contractor, malicious lawsuits to the employer or the general contractor shall be the defendant. Since there is no contract between the employer and the actual construction, some of the employer on the project subcontracted or several sub did not know, the working conditions of the actual construction people do not understand, the actual cost of the project expenditure is unable to verify. In this case, the actual construction of the name of the plaintiff the fictional facts, forges evidence, the engineering quantity big, project cost increase, to the employer's malicious advocated high works, attempting to obtain improper benefits, through malicious litigation the plaintiff, and even some and not involved in the construction. Because the employer to subcontract, illegal subcontracting contract performance and knowledge, not defense, procedural results is likely to damage the interests of people. To be clear, this procedure does not belong to "explain" the provisions of article twenty-sixth of the admissibility of the case, has not yet been accepted, should be ruled inadmissible; has been accepted, it shall reject it. For the general contractor arrears of material suppliers of building materials, such as borrowing money form a debtor creditor relationship, does not belong to "explain" the scope of the provisions of the second paragraph twenty-sixth, construction of the creditor is not the actual construction, but also the right to apply to "explain" the twenty-sixth paragraph second, bring a lawsuit to the people's court to the employer the general contractor or the defendant.

In a word, "explain" the provisions of article twenty-sixth the scope of the judicial interpretation of literal content, provisions of the leadership to reporters, legal provisions, legal and other aspects, is clear on the scope of the article, there is no dispute. Unable to expand the scope of application of the provisions and conditions, more not allowed to rule as malicious damage to the legitimate rights and interests of people or general contracting party to a brick at.

Three is the construction industry department legislation and practice management brings to the activities of law enforcement difficulty."Construction law" second paragraph second: construction activities as mentioned in this Law refers to all kinds of activities, is the installation of buildings and ancillary facilities construction and supporting lines, pipelines, equipment. Can be seen from the above provisions, "construction law" is the adjustment of construction and installation activities of the law, but to build terminals, port, highway, railway and its affiliated facilities, water conservancy project, electric power facilities, construction activity information communication facilities and other professional, whether to belong to the construction activities? According to the cognitive level, ordinary people no doubt, these activities and the building belong to the construction activities. But why "construction law" is not the scope of these activities into construction activities to be adjusted? I understand that the Department should be legislation. In our construction activities in accordance with the construction project is different, belong to different departments, "construction law" said "all types of buildings and ancillary facilities construction and supporting lines, pipelines, equipment installation activities" belongs to the Ministry of construction director. Railway construction belongs to the part of the pipe, the construction of water conservancy project belongs to the water pipe, highway, port construction belongs to the transportation pipe, communication, website construction is the information industry, part of the pipe, military facilities belonging to the military authority management. Because belong to the construction activities of the different construction projects belong to different administrative organ in charge, "construction law" as the Ministry of construction to undertake the drafting of the law, in the definition of construction activity range includes only the portion of the tube building construction activities, construction activities does not include other departments in charge of the. The above provisions brings difficulty to the people's Court of law enforcement activities. Embodied in: the lawsuit of water conservancy project, highway, railway and other major construction contract dispute case, the applicability of "construction law" provisions? Provisions of the Ministry of construction engineering settlement, the engineering quality, bidding, supervision, construction subcontracting, qualification, supervision regulations enacted, other normative views would apply to other construction activities? If not, what is the trial of such cases the standard? Issued by the Ministry of construction cost engineer qualification can project cost identification of engaging in other professional construction activities? If not, the number of cost evaluation mechanism and identification of personnel with other industry identification of qualification is rare, and most do not want to court proceedings were identified, and these professional cost appraisal institutions with these particular industry there are often have all kinds of connections with contact, should be fair to ensure construction cost evaluation of these industry lawsuit when? The above problems, we should study.

Here to talk about my views. First of all, "explained" in the preface wrote that "according to the" general rule of the civil law "," contract law of PRC "," the people's Republic of China invite public bidding bids law "," the people's Republic of China, law and civil procedure law "and other laws, in combination with the judicial practice, the applicable law case trial construction contract dispute question, the formulation of the interpretation". This part stipulated that, "interpretation" is the "general rules of the civil law", "contract law", "Bidding Law", "Civil Procedure Law" and so on a number of substantive law and procedural law explanation, "and other laws and regulations" also includes the "construction law", in other words, "interpretation" is the judicial interpretation of law, "construction law" is just one of a law which. "General principles of civil law", "contract law" is the basic law, applicable to all types of professional construction contract dispute case, the principle of all types of building activity triggered disputes shall apply "explanation", including litigation related water conservancy project, highway, railway and other major construction project construction contract dispute case. "Contract law" 269th paragraph second: construction contract includes engineering investigation, design, construction contract. "Explanation" for the trial of cases of disputes over contracts for construction of judicial interpretation, applicable to construction engineering general contracting, professional subcontracting, labor subcontracting contract dispute case, principle does not apply exploration, design, supervision, decoration contract dispute case.

Impact of new changes in three, the construction industry has brought to trial work.

"Explain" promulgate carry out 3 years, reform and innovation is the main theme of the construction industry, the construction industry as a pillar industry of the national economy in the conflict to difficulties in development, progress. Some have the law but not the business model in recent years has been widely promoted, has achieved good efficiency, for the development of the construction industry has played an exemplary and leading role; at the same time, the legal issues arising from it has been or is about to be reflected in the people's court trial work, in this regard, we should give the necessary attention.

Joint contracting "The so-called joint contracting, is defined by two or more units together form union illegal people, to the combination of the name of the contractor of a construction project contract"[4][4]. Each party to the consortium jointly contracted projects through cooperation contract rights and obligations of the parties agreed, including management mechanism, management mode, the scope, the distribution of benefits, risk sharing mode. The project of joint contract is often a large project, technical difficulty, large quantity, long construction period, large amount of capital consumption of complicated engineering need your cooperation to resolve the risk, to complete the task.

"Construction law" the twenty-seventh stipulation: large construction projects or complex construction, by two or more contracting unit joint contracting. Parties contract to perform the contract shall bear joint and several liability. For joint contracting and different quality levels of more than two units, the lower level of qualification units should be in accordance with the business scope of the contracting project. "Bidding Law" thirty-first article: two or more legal persons or other organizations may form a consortium, to a bidder to bid jointly. Each party to the consortium shall have corresponding capability to undertake the project subject to tender; the relevant provisions of the state or the tender documents have provisions on the qualifications of bidders, each party to the consortium shall have the corresponding qualifications stipulated. The body is composed of units of the same profession, determine the quality level in accordance with the qualification grade of the lower unit. Each party to the consortium shall sign the joint bidding agreement expressly agreed by the parties, the tasks and responsibilities of each party, and the agreement to the tenderer together with the bid submitted by the tenderer. Consortium wins the bid, each party to the consortium shall jointly sign a contract with the bid inviter, jointly and severally liable to the tenderer for the winning project.

According to the concept and the "construction law", "Bidding Law" provisions, combined with the Contractor shall have the following legal characteristics: first, the joint contracting for illegal organizations. If the unit of the joint contracting will joint contracting body transformation is a separate legal entity, then, this contract form evolves into the independent legal person a separate project contracting, as a single contract, is no longer a joint contract. The cooperation of all parties enjoy in the newly established independent legal rights and interests of the units of interests of shareholders, rather than the joint contracting contract rights and obligations, but in the Commonwealth of tender is the identity of one bidder. Second, members of the unit joint contracting body co Contractor shall be jointly and severally liable, to carry out the construction contract. In other words, the joint contracting parties involved in foreign do not distinguish between their respective contract obligation, not to the parties within the division of labor, the employer shall not bear the foreign defense does not fall within its scope of construction of part of the responsibility. The joint contracting parties to take responsibility means that the contracting parties shall bear joint and several liability for all the liabilities and obligations of the contract agreed to the contract. If the employer filed a lawsuit against joint contracting parties, the litigation status joint contracting parties as a joint defendant. Third, between foreign liability and general contracting joint contracting and subcontracting form of liability is different. "Construction law" twenty-ninth paragraph second: the overall contractors and subcontractors to subcontract to the construction unit shall bear joint and several liability. "Construction quality management regulations" provisions of article twenty-seventh: the general contractor and subcontractor subcontracting engineering quality shall bear joint and several liability. The provisions of the laws, administrative rules and regulations can be seen, the construction general contracting and subcontracting of the Subcontract Works shall bear joint and several liability, "sub project" for the construction unit shall bear joint and several liability refers to the quality of the subcontracted projects shall bear joint and several liability, not subcontract shall bear joint and several liability. Members of the unit joint contracting contracting contract shall bear joint and several liability, rather than the joint contracting engineering quality. Object two assume joint liability is different, obviously burden is not the same, the joint and several liability form, is far more important than between general contracting and subcontracting joint contract responsibility burden.

The contract is different from the relationship between the cooperative development of real estate law. The Supreme People's court "on the trial involving the use right of state-owned land contract dispute cases the interpretation of applicable law" fourteenth stipulation: the interpretation of the cooperative development of real estate contract, refers to the contract to provide land use right transfer, such as joint investment fund, profit sharing, risk sharing cooperative development of real estate the basic content of the agreement. The form of cooperative development, including the establishment of the real estate item company and in accordance with the contract to bear their respective rights and obligations. The legal relationship between the cooperative development of real estate is similar to but different from the pool, pool. Associate general requires the parties to jointly funded, joint operation, risk sharing, profit sharing, cooperative development of real estate do not need to jointly operate the parties "". The cooperative development of real estate in accordance with the contract the parties to the rights, obligations. Foreign in accordance with the law, the contract agreed to assume joint and several liability, does not necessarily bear joint and several liability.

Construction general contracting National laws, policies to promote and encourage construction engineering general contracting, the construction general contracting, restriction of Engineering subcontracting. "Construction law" twenty-fourth article: advocating the practice of general contracting of construction projects, construction projects in parts shall be prohibited. Construction project contract awarding units can be building the project survey, design, construction, equipment procurement to a project general contract unit, can also be building engineering survey, design, construction, equipment purchase one or some of these tasks to an engineering general contract unit; however, shall not be done by a the contractor construction parcel out to several contractors. "Contract law" the 272nd stipulation: the employer may enter into a construction project contract and the contractor, may also respectively and exploration, design, construction, exploration, design were entered into the construction contract. "Compared with the total construction contract and the universal application, project general contracting is more pure contracting sense"[5][5]. The Ministry of construction in the "clear about nurturing the development of engineering general contract and project management enterprises guidance" in: engineering contracting is embodiment of international engineering building project. Actively promote the project general contracting is to deepen the implementation of construction project reform, improve the project management level, quality and benefits of investment security engineering, an important means to regulate the order of the construction market.

The people's court shall note in the trial of construction engineering general contracting, engineering general contract is a contract, is a combination of a plurality of independent legal relationship, is a whole. The part of the contents of the dispute, the parties dispute as construction contract, design contract, exploration contracts as part of the people's courts, except the contract review controversial part of the outside, also shall be uniformly applicable conditions review of construction general contracting, cannot consider only the content of contract disputes. The judge exercises his discretion, should consider the balance of interests of disputes, should also take into account the balance in the general contracting contract the overall interests of the.

Construction agent contract What is the principle agent contract? "Explain" the twenty-seventh paragraph second: warranty and building owners or the employer has the fault damage to buildings, bear their respective responsibilities. This is because the warranty provisions and the owners of the buildings or the employer fails to perform the obligations of maintenance caused the common liability for tort damage. Among them, "ownership" or "employer" formulation indicates that construction contract the employer may not be the owners of the buildings, then, between them is what do to tie together? Is the legal relationship of trust agent, ownership of the buildings were the principal, the employer for the agent, legal relationship between them is built for agency. The building will be built by the obligee buildings through the construction agent contract, the agent construction in accordance with the building owner requirements for construction of buildings. For the launch, apartment layout, building costs, the liability for breach of contract, the agent costs depend on the principal and agent on construction agent contract rights and obligations of both parties. The construction agent contract legal relationship nature of the real estate development business, does not belong to the category of construction project contract. Like the bank commissioned a Real Estate Company to build business building, the Real Estate Company for the employer, the construction enterprise to the contractor; banks and Real Estate Company commissioned by the contract relationship.

 Beijing City Hall promulgated the "measures for the administration of Beijing City Hall investment projects construction agent system (Trial)", there are many city also issued a similar provisions, the regulations to further standardize the government project promotes the. The main contents include: this contract principal (Department City Hall), project construction agent project (construction units), use (the actual use of project unit), the general situation of the project, project management, scope and content management objectives and investment control, construction management fees. Worthy of study and explore the nature of such a contract, I tend to the nature of construction contract to identified as appropriate.

At present, the legislature is the legislative idea will account for a large share of government engineering construction market impose construction agent system. Construction agent contract with the construction contract are two separate legal relationship, in principle in the trial in the construction contract disputes, should not be additional delegate as the parties in the case, should not be any client on the repayment of arrears shall bear joint and several liability. The client also has no right to bring a lawsuit to the people's court to contract for the defendant, advocate the contractor responsible for the engineering quality defects. The principal and agent was commissioned by the contract disputes, also should not be additional contractor is a party to the case.

"Construction law" construction activities not coveredAs mentioned above, "explain" the scope of application is not limited to the "construction law" provisions of the construction activities, construction of railway, highway, port, wharf, water conservancy project, such as underground construction activities should also be applied to. "Interpretation" is not applicable to rural town building activities, such activities should apply to the Ministry of construction on the rural market towns building regulations. Construction contract category decoration whether to belong to the "contract law" provisions, do not agree, I prefer not to belong to the scope of the construction contract. Reason: the administrative regulations "construction quality management regulations" second paragraph second, alleged construction refers to the civil engineering, architecture, engineering, line management and equipment installation and decoration engineering. This shows that, the renovation contract of construction project, but does not belong to the scope of the construction contract, construction contract is independent of independent of the contract. The reality of the construction market is, decoration can be divided into the construction subcontracting engineering and independent Decoration Engineering in two cases. I tend to sign for independent decoration construction contract dispute case principle does not apply "explanation", but should refer to the Ministry of construction on the decoration of the normative document processing; has become a decoration engineering construction contract dispute of contract subcontract shall apply to "explain" provisions.

"Interpretation" is not related to the above problems, mainly because the number of people's courts in such cases is not enough, the trial experience is not rich enough, study and explore the many problems still need to summarize the experience of judicial interpretation, making conditions are not mature enough. With the rapid development of the construction market, with the business model will be further popularization, cases is also bound to increase. Believe when conditions are ripe, the Supreme Court will be in a proper way to formulate and publish guidance.

Four,         Application of "interpretation of several issues" should be.

(A good case) the construction contract dispute shall establish trial idea.

Characteristics of construction contract with the contract in common and contract, determine the construction contract has the characteristics different from other types of contracts, the judge should be targeted to establish a construction contract characteristics and such trial law concept.

Construction contract is a special contract, as mentioned before, the common characteristics of the contract, is characteristic of custom objects contractor processing as immovable property. Carrying out the construction contract mode for the contract form. Contract form is mainly applied to decide the contract according to the nature of the performance of the contract process should not be a detailed case, like the contract of rural land, forests, beaches, mineral resources, contracting and leasing state-owned small and medium-sized enterprises, more suitable for not only detailed and piles is account or accounts according to the time period of the contract form. Construction contract is so, only in accordance with the scope of construction piles accounts, had taken a contract management mode.

General construction contract has the following characteristics: one is the contract text complex. The Ministry of construction of the text of the model contract includes: agreement, general conditions, special provisions of section three, multiple, complex content. In addition to the text of the contract, the construction contract must be refined, added to the actual performance, the construction contract bidding forms to sign is no exception. Including the form of construction contract supplement and refinement: visa, the supplemental agreement, correspondence, meeting minutes and other economic record of negotiation. The construction contract and some unique essential provisions, like the claim, to pay the contract price was in accordance with the construction progress, owed project payment shall pay the interest and interest, in accordance with the statutory provisions, the benchmark interest rate is agreed in the contract transfer warranty warranty obligations. The two is a professional and strong. The construction contract dispute amount of engineering, engineering quality and main point of contention involve more professional and technical problem, difficult to judge. The difficulties we are facing are universal, all countries are facing the need to address the problem of professional technology trial of cases of disputes over construction contract. Since 2005, one of the judicial reform measures taken by Japan is the establishment of professional and Technical Committee in the court trial of cases of disputes over construction contract, audit professional technical problems by professional committee to the point of dispute involved, to provide professional basis of the power of judgment for judges to exercise discretion. The Supreme Court and other courts in such cases when the expert witness way to solve the technical problems involved in the case, in particular to the identification of cases. Identification of bodies appear as the appraisal conclusion objections to answer, the judge should allow parties to employ professional and technical personnel as the expert witness, to help the parties involved in professional technical problems. Three is the trading habits and practices of the industry, the management mode has its own characteristics. Like the visa is the construction industry special industry practice. "Explain" also reflects the intentions to comply with customs legislation, "explain" nineteenth special emphasis that the engineering quantity is mainly by the visa. In addition to the visa, the construction industry management pattern is characteristic, construction is in the form of project manager department management of construction project. The project manager to implement internal contract management responsibility system. The employer's business model is characterized by the employer in the construction site to site representative, in charge of economic business records of the construction site of the construction site supervision and management and work visa. In addition, the construction contract also have claim clause. Claims for "compensation", the legal nature of compensation, does not have the function of punishment. The claim for contract, both parties, is a two-way street. The claim is generally applicable to engineering quality, time limit for a project. Is the claim and liability for breach of contract claim gold difference, does not have the function of punishment and the penalty with the dual functions of compensation and punishment. The four is the contract low profits. The construction industry profit margin from 2001 to 2004 industry profits were 1.9%, 2%, 2.3%, 2.2%. From 2006 to 2007 industry profits were: 2.09%, 2.38%.[6]Compared to the [6], the real estate industry profit rate is in 20% above, in recent years the real estate industry profits is to achieve more profits degree. Construction contract low profits, a decision the judge in civil sanctions in the determination of liability for breach of contract, damages and the people's court, should consider the ability to withstand.

The characteristics of the construction contract, decided should set different from other types of contract dispute case trial idea trial of cases of disputes over construction contract. I am to visit Japan, the Japanese high court that the trial of cases of disputes over construction contract is a creative work, and other types of cases heard repeated labor, they say that the trial should be according to the characteristics of construction contract. Characteristics of construction contract is different from other types of contracts, each case has such cases also has the common case, each case should be composed of judges will be the legal relationship clear, find out the facts of the case, the judge in the exercise of discretion to determine compliance with the law or legal principles of justice thinking, ability to balance the interests of the parties, this activity is the creative labor rather than processing loan repay as simple, clear, mostly belongs to the repetitive work. Understand the construction contract dispute case characteristics and the building industry is very important, is the premise and basis of creative judges referee activities, like the "contract law" provisions of the contract, liquidated damages are too high or too low, the court in accordance with the judicial authority to adjust, "too high or too low" used in different types of the case is different, some are very different. On real estate cases, liquidated damages to the total price contract 50%, can not be said, because in recent years the real estate industry is profiteering, some business profit rate reaches as high as 100%; and the construction industry is a low profit industry, the construction industry profit rate is only about 2%, many large the state-owned construction enterprise profit rate is only 0.5% - 1%; if the construction contract agreed liquidated damages for 10% of project cost, it should be said, it can be concluded that the liquidated damages are too high.

To make a long story short, the trial activities should be closely around the construction contract and the characteristics of the construction industry, combined with concrete case, on the basis of law and legal principles, the idea, only in this way, can realize the legal effect and social effect in the trial of such cases the unity.

(two) correct processing contract with the construction contract relationship

Construction contract is a special contract. "Contract law" the sixteenth chapter 287th rules: no provision of this chapter shall be governed by the relevant provisions of the contract. The law shows that, the construction contract is a special contract. Most of the countries of continental law system and not a separate chapter construction project contract, but to make special provisions in the contract, and separate provisions of clauses is small; and the former Soviet Union is the construction contract for a single chapter make provision. "Contract law" 251st article: contract is the contractor in accordance with the requirements of the ordering party work, delivery of the work product, the hirer pays activities.

Contract processing, ordering, replication, repair, testing, inspection and other work includes contract. Rule 269th: the construction project contract is the contractor for construction, and the developer pays the price of the contract. Construction contract includes engineering survey, design, construction contract. Generally, the contract is bilateral, paid, consensual contract. Must finish the job for the purpose of. The Contractor shall work independently. The object has a specific. The contractor to assume risk responsibility in the accident.[7][7] is generally believed that, besides the general characteristics of the construction project contract with the contract, it has the following characteristics: specific contract object, defining the main contract, the contract special management, contract to type.[8][8] I think, contracts (including contracts for construction projects) shall also has two characteristics: one is the basis of the contract is based on mutual trust, the Contractor shall complete the task independently. Like I find a tailor made suits, because he is good, high credit, price reasonable, and Zhang Caifeng to live, the live over to Li Caifeng. From the contract perspective, Zhang tailor failed to live up to my trust in him, no independent tasks, their behavior constitutes a fundamental breach of contract. "Contract law" the 253rd stipulation: the Contractor shall use its own equipment, technology and labor, to complete the main tasks, except otherwise agreed by the parties. "Contract law" 272nd paragraph second: the Contractor shall not use the entire construction project contracted by third people or the nominal full construction dismembered the contract after the of subcontracting to third people. "Construction law" the twenty-ninth stipulation: the total construction contract, construction of the main structure construction project must be completed by the general contracting unit itself. The construction contract to be part of professional and technical engineering subcontracting, but, in addition to sub contracting contract, must be approved by the construction unit. The original intention of legislation of the law is intended to reflect the Contractor shall finish the hired work, the main work shall not subcontract. Two is the parties to a contract should cooperate with each other. "Contract law" provisions of article 259th of the hirer's obligation to assist, two hundred and fifty-five - two hundred and fifty-seven also stipulates the contract the parties shall cooperate to specific matters. The provisions of article 275th of the construction contract the parties shall mutually cooperative content. The law stipulates that, mutual cooperation is the principle and foundation of contract breach obligations, cooperation constitutes a fundamental breach of contract.

The construction contract the contractor is not entitled to lien on the construction project."Contract law" the fifteenth Chapter contract part 264th rules: the ordering party fails to pay the remuneration or the prices for materials, the contractor is entitled to lien upon the work results. Then, the construction contract project contractor by the employer fails to pay the project case, is entitled to lien on the construction of the? The author thinks not has the right of lien. The reason is: first, the "contract law" the 287th stipulation: no provision of this chapter shall be governed by the relevant provisions of the contract. In other words, this chapter has provided, shall belong to the provisions of this chapter, and shall not apply the provisions of the contract. "Contract law" article 286th the employer owes the contractor relief way, way is made clear, the employer has the right to project discounted or auction price first refusal, which belongs to the "contract law" the sixteenth chapter stipulated circumstances, should not be when the provisions of "contract law" the fifteenth Chapter contract. Secondly, the dominant view is that the legal nature of priority "contract law" provisions of article 286th of statutory mortgage, not the claims of privilege or statutory lien, belonging to his right, with chase and the effect of real right, the right has always been attached to the object, not because of the subject matter transfer and loss of right of priority. The law gives the contractor of this right is enough to satisfy the contractor recourse project requirements, without the need to give the contractor to lien, the Contractor does not enjoy the right of lien. Third, according to the above analysis, the contractor for breach of contract to the employer refused to hand over the project or construction materials, should be regarded as breach of contract, should according to the specific case by the judge to exercise discretion to determine the Contractor shall undertake the liability for breach of contract and liability of. It should be noted that, the contractor for breach of contract or damages liability should not be overweight.

In principle does not apply to construction contract the right to terminate any contract."Contract law" the 268th stipulation: the hirer may terminate the contract at any time, causes losses to the contractor, shall compensate for the losses. According to this provision, the ordering party enjoys the right. "Contract law" the sixteenth chapter 287th rules: no provision of this chapter shall be governed by the relevant provisions of the contract. Construction contract section does not stipulate the right of the employer, the content from the law, the employer shall enjoy the right to contract for construction project. This problem should be how to treat? First of all, the mainstream view of academia thinks, the developer of the construction project contract does not enjoy the right. Scholars believe that "the construction project contract strictly management state, does not allow any alteration and termination. The employer and the contractor in the premise of not violating the compulsory provisions, can consultation change or cancelling. Alteration or termination of a contract for construction project must comply with the statutory procedures and forms"[9][9]. "On the" contract law "provisions of article 268th of the ordering party right to terminate at any time. This article according to the present Provisions shall apply to the contract stated in terms of construction contract. But from the particularity of the construction contract and prevent the waste of social resources perspective, should as far as possible to maintain the stability of the construction contract, therefore this article shall not apply to construction contract. Just a little, the theory circle and practice circle have reached a basic consensus. Research on the legislation purpose from the interpretation of the provisions of the employer's right to terminate a contract, which of course is not applicable "[10][10]. Of course, also with a view, "contract law" provisions, "insurance law", "labor law" and other laws and regulations all kinds of contract right shall be strictly applied, is equal, not free to say what the law does not apply to the provisions. From the "literal interpretation of content interpretation of" eighth - 10 stipulation, the judicial interpretation of the provisions in principle is the "contract law" the ninety-fourth general explanation, in principle the employer does not enjoy the right. I think, "explain" eighth - 10 shall, on the principle of using the mainstream view of jurisprudence, namely, the employer can not lift the construction contract construction. The promulgation and implementation of three years from the explanation to the court trial practice, the Supreme Court and local levels to strictly in accordance with the "interpretation" provisions, in accordance with the "contract law" stipulated in the general provisions of the contractor and the employer's grasp of legal right of cancellation, the effect is good, should continue to carry out.

The contract on crop quality defects, the hirer may reduce the price regulations, applicable to the construction contract."Contract law" the 262nd stipulation: work results delivered by the Contractor fail to meet the quality requirements, the hirer may require the contractor to undertake repairing, remaking, reducing remuneration, such as compensation for loss of liability for breach of contract. This shows, has quality defects in custom-made objects contractor processing, reducing remuneration is one of the methods of bearing civil liability. Rule 281st: construction workers because of the construction quality does not conform to the stipulations of the contract, the employer has the right to require the construction of free of charge within a reasonable time, repair or rework reconstruction. After rework, repair or reconstruction, causes overdue delivery of the project, shall bear the liability for breach of contract. "Contract law" is not specified in the construction contract some defects in the quality of the project, the Contractor's liability for breach of contract and liability damages including reducing remuneration content. That is to say, the "contract law" provisions of article 281st is applicable to construction contract? "Explain" the eleventh stipulation: the cause of construction engineering quality does not comply with the contract due to the fault of the contractor, the contractor refuses to repair, rework or alteration, the employer requests to reduce the payment of construction costs, shall support. This article shows that: one is the "contract law" for reducing remuneration shall be applicable to the construction contract in contract part quality defects relating to the subject. At present, the people's court defects on the quality of the project, is seldom applied to the provisions of this decision to reduce the contractor, mainly because of the reduced project cost to be difficult to determine the amount of. Therefore, the author thinks, the judge may entrust the engineering cost evaluation unit on the project quality defects of the loss and shall reduce the amount issued advice, can also according to applicable local market or the signing of the contract, the quota standard, fault and other factors, decided to reduce the project cost amount. Two was engineering quality defects should be borne by the Contractor free repair, rework, alteration of the responsibilities and obligations, it is the Contractor's responsibility and obligation, in some extent, but also the Contractor's rights and interests. At present, the construction contract dispute case the people's court, in the presence of engineering quality defects, many employers don't let the contractor on the project quality defects repair free of charge, rework, reconstruction, but also specify the construction team to repair faulty construction, will repair costs from shall pay the deduction to Contractor's tail paragraph, some even deliberately repair costs are high, do not pay or intended purpose project payments less pay the contractor. This approach is not appropriate, "interpretation" of article eighth (3): paragraph construction contractor has completed quality unqualified, and refused to repair the case, the person has the right to terminate the contract. In other words, the Contractor fails to repair, can not lift the construction contract, specify other repair. "In many countries, the German Civil Code" and the continental law system to the contractor repair period, the engineering quality defect cost were clearly defined.

(three) recognized accurately and correctly grasp the "black-and-white contract enforcement relates to" case

Here is how to grasp the "black-and-white contract processing scale", to the point of personal views are not mature, so used for.

The people's court shall accurately identifying "black contract" standard. The construction market "black and white contract" was spread and development trend, the construction contract for the construction contract dispute cases by the people's court in existence, more than half of the "black-and-white contract". If the criteria are too strict, it means the construction contract amount will be considered invalid, economic activity could lead to reverse circulation, this result does not meet the building market reality, is not conducive to the economic activities of the clockwise circulation, is not conducive to the healthy development of construction market; such as to grasp the standard is too wide, is the essence of the illegal act indulgence, and opposite party Central Committee, the State Council to regulate the construction market intention; such as law enforcement discretion properly managed, can cooperate with people's Government on the construction market rectification measures, serious executive "Bidding Law", also need to face the reality of the construction market, the rapid development of the construction market for health protection, the overall situation the development of the national economy service. Accurately grasp the "what is black and white contract" standard? Generally, the tender notice is an invitation to offer, tender offer, bidding for commitment. "Bidding Law" the forty-sixth stipulation: the bid winning notice has the force of law to the tenderee and tendering people. The main content of the bidding documents means recorded in the bid winning notice issued after the law, average per capita has legal binding force on the bidders and other bidding, construction contract is established and come into force shall be determined. Also with a view, the bid is not a promise, because the parties have not signed the contract, the contract is main content of future signed the agreement, a contract is not established, not to mention the effect. The reason is: "Bidding Law" the forty-sixth stipulation: the tenderer and the winning bidder shall, within 30 days from the date of the notice, in accordance with the signing of a written contract tender documents and the bid documents. The author thinks, no matter which view is correct, the bid winning notice are legally binding documents, the tenderer and the winning bidder may not conclude any other agreement, against the substantial contents of the contract or otherwise, by the tenderer and the winning bidder contract belongs to the "black contract". "The substantial contents of the contract shall be the bid winning notice" is written content, because the construction contract signed must include the substantial contents of the bid winning notice records; logically speaking, the construction contract with the bid winning notice for the relationship between the species, the construction contract can cover the bid winning notice. The main clause of the construction contract should include: project cost, schedule, quality standard, breach of contract responsibility contract such as the essential clauses.

Based on the above analysis, that "black contract" should grasp the following points: one is the characteristics of construction contract determines all construction contracts are needed to refine and change to perform, the construction contract bidding forms to sign is no exception. Can't be understood by bidding contract, after signing the contract cannot be added, revision, refinement, only a contract to the end. Through incurs the bid construction contract signed with the construction contract signed by other forms, all need through the economic record of negotiation and other forms of interruption of the main contract supplement, thinning, can complete the actual performance, cannot assume that the parties signed the "black contract". Two is the "substance" to grasp? Identification of "substance" standard, part of the judge's power of discretion. The author thinks that the "substance" standards should not be too strict. "Substance" is associated with the specific case, like 1000000 yuan project prior contract price contract less than 200000 yuan, it should be identified as "black contract"; 20000000 yuan project 2000000 yuan less, may not be identified as "black contract". As a special engineering complex process necessary construction period is longer than the general project, not to the general construction measure time standard shaped engineering; special construction in the construction process of appropriate extension is reasonable, so that the parties can not change the substantive content of the contract. But to grasp the "substance" bottom line, contradict the specification range not with legal provisions, but to grasp the national standards, industry. Like the economic record of negotiation after the reduction of project price can not be less than the construction cost, the laws of nature, not the cycle must be shortened the time limit after cannot violate the construction industry process in violation of construction should follow. Like the cement hardening have a natural cycle, violate the law of nature in cement is not completely harden before the start of next step work period, this behavior will reduce the strength of cement, will affect the quality of the project, in violation of national standards and national mandatory standards. Break the bottom line, the people's court shall firmly identified parties separately signed the "black-and-white contract". Three is the "record" not found "black-and-white contract legal basis", but the reference factor. For the record and winning against the substantial contents of the contract, shall be based on the substantive content of the contract records shall prevail. Record as one of the bidding activities of the management measures, legal effect does not have the real right public announcement, is "one of the factors to judge of black and white contract". After signing the contract, due to objective reasons lead to the contract contents substantive change, the Contractor shall go through the formalities for two times or filing formalities. Four if there is a "black contract invalid", which should be in a "black contract" as a reference of Engineering settlement. In real life, there are many between the tenderer, the insured, the bidding agencies malicious collusion, the tenderee leakage bid, bidder collusion and other illegal behavior led to the contract is invalid, the parties have signed below (or above) the so-called "black contract contract". Price, time, quality standards are not consistent "black contract" two above there is dispute, such as construction projects after the completion of acceptance, the people's court shall refer to the settlement project price agreement which "black contract"? The Supreme Court and the local people's court this practice is not a. Some courts according to the specific circumstances of case there are two or more "black contract" of the post, according to "explain" the provisions of article fourth properly be confiscated; some parties in accordance with the contract ineffective fault, distribution of more than two "black contract" post; some courts in accordance with the parties to the project construction quality, fault, invalid contract balancing the interests of both parties, and the market average cost is consistent with the comprehensive factors such as the decision of two or more "black contract" the difference between the distribution. I think the construction contract dispute case difference, should according to the specific situation of the case by the judges discretion scheme design and decide, not necessary to develop the trial scheme of national unity, but the judge determined the scheme and the idea of "contract law" shall be in conformity with the provisions of the contract fault liability principle, the principle of fairness and the principle of good faith and the spirit of the law.

(four) with civil sanctions.

On the "general rules of the civil law" provisions of article 134th of the civil sanction measures in the construction contract should be as

How to apply? "Explain" the provisions of article fourth of the civil sanction measures should be used with caution, when applicable, confiscated amount is too large, the main functions of the people's court in civil and commercial case is centered justice, not to be punished for the party. Then is the construction industry is low profit industry, the penalty amount is too large, the parties to bear. Application of "interpretation" of Article 4, should pay attention to: one is the collection of objects is only the parties have made illegal income; the agreement made, has not yet been performed, this article does not apply to. Two is the administrative organ of the illegal act of the party has made the decision on administrative punishment, the people's court should not be re civil sanctions. Three is to punish illegal acts, can not punishment; punishment depending on the circumstances and whether. Four is the punishment range should not be too heavy. Civil sanctions itself is one of the means to balance interests of the parties, not because the applicable penalties and leading to a serious imbalance between the interests of the parties.

(five) the parties to a contract for the cooperative development of real estate developer owed project payment does not bear joint and several liability.

The cooperative development of real estate in the contract in accordance with the contract, contractual obligations cooperative party is responsible for the development of project construction contract, as the employer by signing the construction contracts and construction enterprises, the employer to repay the arrears, the other partners shall bear joint and several liability principle not to pay their arrears.

The Supreme People's court "on the trial involving the use right of state-owned land contract dispute cases the interpretation of applicable law" fourteenth stipulation: the interpretation of the cooperative development of real estate contract, refers to the contract to provide land use right transfer, such as joint investment fund, profit sharing, risk sharing cooperative development of real estate the basic content of the agreement. Cooperative development contract parties is in accordance with the contract, assume their respective rights and obligations. "Mutual investment, profit sharing, risk sharing" refers to the cooperation of all parties within the relationship, and not to foreign relations. "General principles of civil law" fifty-second article: joint venture enterprises or between enterprises, institutions, joint operation, does not have the qualifications of a legal person, each party to the association in accordance with the proportion of investment or agreement, to their respective ownership or management shall bear civil liability. Jointly and severally liable in accordance with the provisions of law or agreement, shall bear joint and several liability. Rule fifty-third: joint venture enterprises or between enterprises, institutions, in accordance with the contract operations independently, its rights and obligations stipulated in the contract, civil responsibilities. With reference to the provisions of article two, other organizations to cooperate in the development of real estate contract the parties did not set up the cooperative development of the real estate item company or does not have the qualifications of a legal person, should be "independent operation" in accordance with the contract, shall bear civil liabilities independently. Step back and say, even if the parties entered into a cooperative development contract belongs to the "general rules of the civil law" fifty-second article of the cases, related parties should also be in accordance with the provisions of the law or the agreement shall bear joint and several liability. No provisions in the law, there is no contract agreement, the parties should not as a construction project contract to repay the arrears shall bear joint and several liability. The cooperative development of real estate contract, does not belong to the individual partnership, the partnership is not, should not apply to "general principles of civil law" or "partnership enterprise law" the relevant individual partnership and general partners shall bear joint and several liability.

Specifically, according to the contract relativity principle, in addition to the outside of the parties to the contract for cooperation

Also works arrears not bear joint and several liability. Legal relationship of litigation is the construction contract dispute case, instead of the cooperative development of real estate contract disputes. Construction contract is only binding on the parties to the contract, the contract parties outside of the people do not have legal effect. Secondly, from a legal perspective, the creditor's right belongs to relative right, relativity is the basis of creditor's rights. Debt is a specific legal relations between parties, creditors and debtors are specific. Only to the specific creditor debtor request for payment, the debtor can only have obligations to creditors. Even if the third actions lead creditor's rights can not be achieved, the creditor can not according to the effect of creditor's rights to third requests to remove the hindrance, creditor's rights in the nature of human rights. Third, "specified in the first paragraph of article eighty-fourth of the general principles of the civil law": debt is in accordance with the contract or in accordance with law, between the parties concerned specific rights and obligations. Second paragraph: creditors have the right to demand that the debtor in accordance with the contract or in accordance with law obligations. "Specific" meaning is spoken only by parties to the contract personnel by the content of rights and obligations of the contract constraint. Based on the creditor requires debtors to fulfill their obligations, the provisions of the contract or law. Accordingly, the employer to repay the arrears, the other partners shall bear joint and several liability principle not to pay their arrears

In addition, the people's court shall also review except the employer outside partners whether

In to replace the original employer or for the performance of adding debt and with the construction contract the employer has become the common employer facts. Such as exist, shall be deemed as partners with the construction contract the actual participation in the construction contract and cooperative development contract the employer has become a common employer, it shall bear joint and several liability to pay owed project payment. Fully involved in actual construction contract performance behavior: the employer together with selected construction team, participate in the construction management, payment, in the economic visa signed opinions, participate in project approval or project settlement etc..

In a word, to review the past, 3 years, "interpretation" provides a legal basis for the specific for the people's court trial of cases of disputes over construction contract, clarify some vague understanding, unified judicial ideas and concepts of "interpretation", for the vast majority of cases achieved good legal effect and social effect, therefore, should be to be fully affirmed. Facing the reality, we should clearly see many new situations, new problems have emerged in construction market not "interpretation" can cover. "Explain" the setting time and limitations, guidance for the trial court plays is limited, therefore, we are in positive result while, also should keep a clear head. Facing the future, shoulder heavy responsibilities, we need to understand, grasp, to solve many problems, the construction market crackles with the dynamics of change, change the type of construction contract dispute case, the legal relationship, the focus of controversy, but also in uninterrupted; therefore, we must constantly learning, and strive to forge ahead, firmly grasp the initiative in the judicial work trial of cases, good construction contract disputes, to achieve fairness, justice and hard work in the whole society.