On The Identification Of Validity On Black-and-white Contract

With the rapid development of market economy, construction market hasgradually entered into buyers’ market that was located in sellers’ market in China, andin order to regulate business behavior, our government performs the bidding systemagainst large-scale engineering construction, especially that is related to countrybenefit and public interests, obviously, it is very significant to have priority to selectfirst-rank contractors, and appropriately control construction price, and ensureengineering construction grading of quality and security, and maintenance the publiclegal right and benefit. However, because it is later to develop construction market inChina and the relevant laws is absent, and in addition to the lack of experience onsupervision for government, some constructors and contractors usually sign a newagreement, namely “black-contract” other than a bidding contract that was registeredin practice, and in this condition, the registered bidding contract is regarded as a“white-contract”. The occurrence of “black-and white contract” doesn’t onlydisarrange the normal order of business, and bring the business venture, but alsopotentially threatens country and public interest; in particular, with coming into city ofrural labor force in recent years, the conclusion of “black-and-white contract” oftenharm their legal benefit, and lead a series of social problems, for example unpaidincome to rural labor.From our current civil legislation, the lawful regulation against state of the“black-and-white contract” has embodied in <Tendering and Bidding Law>,<Buildingand Municipal Infrastructure Projects Tendering for Construction ManagementMeasures>, and <Interpretation of Supreme People’s Court for Trial for The DisputedCase Construction Project Contracts over The Question of Applicable Law>and otherrelevant laws and regulations, this provides basis for the court to settle the disputes inthe judicial practice. However, unfortunately, these laws don’t define clearly theconnotation of “black-and-white contract”, and its effect is not made directly, this willundoubtedly bring about many relevant cases that cannot be consistent with, and isnot conducive to the maintenance of the rule of law. In addition, the law theory fieldhas different viewpoints about the effect problem of “black-and-white contract” andcome into a unified view, this also increase the complexity of the problem on “blackand white contract”. Therefore, in the current context of development of the socialist market economy and building socialistic harmonious society, paying intimateattention and carrying an study on the general phenomena of “black-and-whitecontract” in construction areas, it has great practical significance, both for regulatingthe market transactions of construction market participants, maintaining the normalorder of construction markets and promoting the sound development of theengineering construction projects and ensuring the quality and protecting life andproperty security of the public.Of course, in order to solve reasonably and effectively various types of contractdisputes arising from the phenomenon of “black-and-white contract”, it is impossibleto only rely on the existing legislation, we must improve the building regulations, andthe first step should be the legislative improvement of content and effectiveness of“black-and white contract”. Therefore, the author hopes that the article is beneficial tofuture legislative perfect through academic analysis of the effect qualification issuesagainst “black-and white contract”.