Article 2 if the scope of work, construction period, project quality, project price and other substantive contents stipulated in the construction contract of the construction project signed separately by the bid inviting party and the bid winning party are inconsistent with the bid winning contract, and one party requests to determine the rights and obligations in accordance with the bid winning contract, the people’s court shall support it
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In addition to the winning contract, the bid inviting party and the bid winning party sign a separate contract for the purchase of the contracted real estate, the construction of supporting housing facilities free of charge, the transfer of profits, and the donation of property to the construction unit, so as to reduce the project price in disguised form
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If one party requests to confirm that the contract is invalid on the ground that it deviates from the substantive content of the winning contract, the people’s court shall support it
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1、 According to the particularity of the construction contract, the judicial interpretation of this article makes it clear that the scope of the project, construction period, project quality, project price and other contents in the construction contract belong to the substantive content of the contract
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The substantive content of the contract is not specified in the bidding law
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According to the literal meaning, it should refer to the content that has a substantial impact on the rights and obligations of both parties to the contract
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When we understand the “substantial content of contract”, we should pay attention to the following three points: first, the substantial content of contract does not refer to the main terms of the contract
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Second, the substantial content of the contract is not equal to the content of the new offer
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Article 488 of the Civil Code stipulates: “the content of acceptance shall be consistent with that of offer
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If the offeree substantially changes the contents of the offer, it is a new offer
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A change in the subject matter, quantity, quality, price or remuneration, time limit for performance, place and manner of performance, liability for breach of contract and method of dispute resolution of the contract is a substantial change in the content of the offer
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” According to Article 488 of the civil code, the substantive terms of the contract are listed
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The items listed are substantive terms, but the substantive terms are not limited to the items listed
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For example, the choice of law application should also be substantive
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Whether the substantive clauses listed in article 488 of the civil code constitute substantial changes in the actual transaction contract needs to be analyzed in specific cases
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Different types of contracts have different substantive terms
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If we want to define the scope of “substantial content of contract” in the first paragraph of Article 46 of the bidding law, it is necessary to explore why the law makes such provisions
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This can be considered from two aspects: first, whether it will affect other successful bidders to win the bid
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Second, whether it has a greater impact on the rights and obligations of the bidder and the bid winner
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In addition to the construction project scope, construction period, project quality and project price, there may also be agreements that deviate from the substantive content of contracts signed according to bidding documents and bid winning documents under certain circumstances
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It can only be determined according to the specific situation of the construction project and the parties concerned
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Any conditions that may restrict or exclude other bidders may constitute the “substantial content of the contract” in the first paragraph of Article 46 of the bidding law
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Therefore, Article 2 of this judicial interpretation only lists the project scope, construction period, project quality and project price, and does not exclude other possible factors
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This is not a complete list, where “etc” is extragrade
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Remarks: the new interpretation refers to the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract dispute cases (1) (issued on December 29, 2020 and implemented from January 1, 2021) and the original construction project judicial interpretation refers to the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract dispute cases (January 1, 2005) The original judicial interpretation of construction project (II) refers to the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract disputes cases (II) (effective from February 1, 2019)
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Reference book: understanding and application of judicial interpretation of construction contract of the Supreme People’s Court (II), people’s court press, January 2019 First edition
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Guo Junfu, a member of the Communist Party of China, is an intern lawyer and patent agent of Beijing Dacheng (Shijiazhuang) law firm
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He once served as a military supervisor and military legal adviser of the central war zone Procuratorate of the Chinese people’s Liberation Army, a section level cadre of the Department of housing and urban rural development of Hebei Province, a law enforcement supervisor of the Department of housing and urban rural development of Hebei Province, a public lawyer of the Department of housing and urban rural development of Hebei Province, an inspector of urban rural planning of Hebei Province, a founder of the legal expert database of Hebei Province, a member of the intellectual property professional committee of Beijing Dacheng Law Firm, and a member of the army to lawyer Federation He is the initiator of the intellectual property research group, Deputy Secretary General of the legal expert committee of Hebei affordable housing association, invited legal experts from many provincial industry associations, and member of China law society..
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