On the types and legal consequences of construction contract invalidation in the era of civil code Li Jianke Li Yanni Abstract: the provisions of construction contract invalidation in civil code are not only the integration of legal practice, but also the self consistency of legal theory; the classification and types of construction contract invalidation should be differentiated and applied; the legal consequences of construction contract invalidation should be clarified We should distinguish fairness and fault, compensation and compensation
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In a word, the provision of invalidation of construction contract in civil code aims to realize the fairness and justice between private interests, public welfare and private interests strictly abide by the law
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Key words: civil code construction contract invalidation types legal consequences contents 1
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Provisions on invalidation of construction contract in Civil Code: integration and self negotiation 2
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Classification and types of invalidation of construction contract: differentiation and application 3
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Legal consequences of invalidation of construction contract: conditional fairness Compensation and fault compensation ﹣ 4
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Conclusion: fairness and justice between private interests, public welfare and private interests strictly abide by the provisions of the law
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1
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Provisions on invalidation of construction contract in the Civil Code: integration and self negotiation
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Before the implementation of the civil code, the provisions on invalidation of construction contract are mainly concentrated in the separate law and the Supreme People’s Court on trial of construction contract The interpretation of applicable law in dispute cases (1) and (2)
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The civil code integrates the original legal provisions
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The Supreme People’s Court promulgated the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract disputes (1) on December 25, 2020, which will come into force together with the civil code on January 1, 2021
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Therefore, from January 1, 2021, to determine whether a construction contract is valid, the relevant provisions of section 3, Chapter 6 of the general provisions of the civil code, Chapter 18 of typical contracts in the second part of the third part and the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract disputes should be applied （1） (FA Shi [2020] No
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25)
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1
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Article 791 of the civil code of the people’s Republic of China [contracting, contracting and subcontracting of construction projects] the employer may enter into a construction project contract with the general contractor, or a survey, design and construction contract with the surveyor, designer and constructor respectively
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The developer shall not divide the construction project to be completed by one contractor into several parts and contract them to several contractors
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The general contractor or the contractor for survey, design and construction may, with the consent of the employer, entrust part of the work contracted by himself to a third party for completion
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The third party shall be jointly and severally liable to the employer with the general contractor or the survey, design and construction contractor for the work results completed
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The Contractor shall not subcontract all the construction projects he has contracted to a third party, or separately subcontract all the construction projects he has contracted to a third party in the name of subcontracting
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It is forbidden for contractors to subcontract projects to units without corresponding qualifications
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It is forbidden for subcontractors to subcontract the contracted projects
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The construction of the main structure of the construction project must be completed by the contractor himself
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This article is the regulation of illegal contract awarding, subcontracting and subcontracting, and the integration and generalization of 24, 28 and 29 of the construction law and 7, 18 and 78 of the regulations on the quality management of construction projects
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“Interpretation of the Supreme People’s Court on the application of law in the trial of construction contract disputes (1)” Article 1 a construction contract shall be deemed invalid in accordance with the provisions of the first paragraph of Article 153 of the civil code under any of the following circumstances: (1) the contractor has not obtained the qualification of a construction enterprise or has exceeded the qualification level; (2) it has no qualification The actual quality constructor borrows the name of a qualified construction enterprise; and (3) the construction project must be subject to bidding without bidding or the bid is invalid
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A construction contract signed by a contractor with others for subcontracting or illegally subcontracting construction projects shall be deemed invalid in accordance with the provisions of Article 153 (1) and article 791 (2) and (3) of the civil code
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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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Article 3 the people’s court shall support the party’s request to confirm the invalidity of the construction contract of the construction project on the ground that the employer has not obtained the planning approval procedures such as the planning license of the construction project, except that the employer has obtained the planning approval procedures such as the planning license of the construction project before bringing a lawsuit
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If the employer is able to go through the examination and approval procedures but fails to do so, and requests to confirm the invalidity of the construction contract of the construction project on the ground of not going through the examination and approval procedures, the people’s court will not support it
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Article 4 if a contractor signs a construction contract beyond the business scope permitted by the qualification level and obtains the corresponding qualification level before the completion of the construction project, and the party concerned requests to be treated as an invalid contract, the people’s court will not support it
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The above-mentioned provisions are invalid provisions on the planning and approval procedures of construction enterprises, such as the qualification of construction enterprises or exceeding the qualification level, borrowing the qualification, failing to invite tenders or winning the bid, subcontracting, illegal subcontracting, deviating from the substantive content of the winning contract, and failing to obtain the construction project planning license
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They are invalid in violation of the mandatory provisions of laws and administrative regulations, and belong to the civil code Article 153, paragraph 1 of the code
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Article 153 (1) of the Civil Code stipulates that the civil legal act in violation of the mandatory provisions of laws, regulations and administrative regulations is invalid, except that the mandatory provisions do not lead to the invalidity of the civil legal act
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As for this article, one is violation of laws and administrative regulations, and the other is compulsory provisions
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According to Article 4 of the judicial interpretation (1) of the contract law of the Supreme People’s court, after the implementation of the contract law, the people’s court shall confirm the invalidity of the contract on the basis of the laws formulated by the National People’s Congress and its Standing Committee and the administrative regulations formulated by the State Council
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As for mandatory provisions, referring to Article 30 of the “nine minutes of the people’s Republic of China”, when hearing contract disputes, the people’s court should carefully judge the nature of “mandatory provisions” in accordance with Article 153 (1) of the general provisions of the civil law and Article 14 of the judicial interpretation (2) of the contract law, especially considering the types of legal interests protected by mandatory provisions, the legal consequences of illegal acts and transaction security On the basis of full protection and other factors, its nature should be determined, and the reasons should be fully explained in the judgment documents
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The following mandatory provisions should be recognized as “effective mandatory provisions”: mandatory provisions involving public order and good customs such as financial security, market order and national macro policies; prohibited trading of trading objects such as human organs, drugs and guns; violation of franchise provisions such as OTC funding contracts; serious violation of trading methods such as violation of bidding A contract concluded by means of competitive contracting; if the trading place is illegal, such as futures trading outside the approved trading place
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Generally speaking, the mandatory provisions of administrative nature such as business scope, transaction time and transaction quantity should be recognized as “mandatory provisions of management”.
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