Why is it difficult to deal with construction contracts?

Scan the code to add Xia Qianqian's personal WeChat Reply to the book list Receive 100+ high-quality legal book lists

Author = Yu Wengong Excerpt from "General Contracting Contract of Construction Projects: Basic Principles and Practical Operations"

Foreword

This is a practical book for discussing general contracting contracts for construction projects (including general construction contracting contracts and general engineering contracting contracts). The core of this book is to systematically and completely introduce the theoretical and practical issues of general contracting contracts from the perspective of the types of disputes in general contracting contracts.

For legal professionals who have received traditional legal education, they will basically feel a certain degree of difficulty when studying construction contracts, and in fact, this feeling of difficulty is related to the civil law system of statutory law. As a country with a statutory legal system, the arrangement of legal provisions on the mainland is from abstract to concrete, general to special. In principle, the provisions of the "General Principles" of the first subpart of the contract part of the Civil Code are regulated on the basis of temporary contracts, and the provisions of the second subpart "typical contracts" are basically regulated by the sales contract as a typical form of a paid contract. Therefore, the legal person's mind is very familiar with the operation of temporary contracts and sales contracts. However, due to the nature of a continuing contract and a service contract, coupled with the large amount of the subject matter of the construction project, the long construction period and the high risk, the content of the contract involves many engineering and technical issues, these factors will cause the legal logic behind the construction project contract to be very different from the legal logic of the temporary property contract, resulting in the interpretation and application of the contract having to be greatly adjusted.

The author believes that in the field of construction contracts, it is not possible to simply take legal provisions and legal concepts as the object and use the formal logic deduction of conceptual law to understand construction contracts, but to analyze them from the specific and realistic types of disputes. The traditional syllogism advocates that interpretation and application of law should be thought back and forth between the major premise and the minor premise, but the author believes that in the field of construction engineering, the distance between the major premise and the minor premise is too far, and in order to facilitate the operation, we need an intermediary, that is, to prune the "general facts of life" and turn them into "facts of legal significance" to help us interpret the contract, which is a fact of legal significance, which is the type of dispute that the author refers to. Due to the large number of types of construction contracts stipulated in the Civil Code, this book is limited to the relationship of space, and the issues discussed in construction contracts focus on the general contracting contract of construction projects, and the types of disputes in general contracting contracts are divided into 5 categories, 11 middle categories and 29 sub-categories for discussion, and the discussion of relevant classifications is explained in detail in Chapter 5 of this book.

In addition, because many people do not understand the core difference between the general construction contract and the general construction contract, coupled with the current total investment control and audit procedures of government investment projects, which are basically designed with the general construction contracting as the core, the phenomenon of treating the general contracting of the project as the general contracting operation abounds in practice. At present, there is a voice in China that the core ideas of the "Yellow Book" and the "Silver Book" in the FIDIC contract text are not suitable for the operation of domestic EPC contracts, but they cannot put forward the core difference between the EPC construction contract and the EPC contract, in fact, this statement does not help to solve the problem. Since the EPC model is a contracting system imported from foreign countries, when discussing the core differences between the EPC construction contract and the EPC contract, the author suggests that the core spirit of the FIDIC contract text can be referred to, and then some localized adjustments can be made. The China Construction Engineering Cost Management Association issued the "Construction Project General Contracting Valuation Specification" can be seen to be working in this direction, and the author will also introduce the content of the specification in the second chapter of this book and the corresponding chapters. In order to make it easier for readers to grasp the content of this book, the author filmed 40 explanatory videos and placed the video QR code in the corresponding chapter of the book, and readers only need to scan the QR code in the chapter to see the video content.

Yu Wen-kyo

March 2024

The article represents the author's personal views and positions only

Scan the code to add Xia Qianqian's personal WeChat Share the exclusive daily visa for legal professionals every day Submissions are also welcome!

-Painted eggshell-

Click ↓ to enter the microphone reading store to reply to the book list to get the collection of microphone reading books