| In the construction project,the general contractor,in order to disperse the risk of non-payment by the project owner,to obtain the time benefit,and to strengthen the supervision of the subcontract works,will often agree with the subcontractor in the subcontract,after receiving the work payment from the project owner,to pay the subcontractor,which is commonly referred to as the “ back-to-back ” clause.Although this clause has become an industry practice after a long development in the field of construction engineering,however,the determination of its legal effect is not only not clearly stipulated in the legislation,but also has no consistent standard in judicial practice,which directly leads to the long-term disconnect between transaction and judicial protection,which hinders the healthy development of the construction project market,and then affects the further development of the whole industry.According to the principle of absence of legal prohibition means freedom in the field of private law,the “ back-to-back ” clause is not expressly prohibited by the relevant laws and regulations,nor does it have the content of violating the coercive provisions of law,so it should be recognized as effective under the current legal system of our country in order to fully express respect for party autonomy.It should be noted,however,that since the provision is not an independent liquidation clause,its effectiveness cannot be independent of the subcontract itself.That is,when the subcontract is valid,the “ back-to-back ” clause is valid,and when the subcontract is invalidated by such acts as subcontracting,illegal subcontracting,etc.,the“ back-to-back ” clause is also invalid.In order to prove this point of view,this paper will,through the existing jurisprudence,under the framework of the current law,combined with the perspective of law and economics,to investigate and analyze the effectiveness of this provision,in order to fully respect the interests of party autonomy,to balance the benefits of all parties,to promote the overall smooth and orderly development of the construction industry.In addition to the introduction,this article consists of five parts:The first part defines the connotation of the “ back-to-back ” clause,then from the two perspectives of legislation and judicature,this article briefly explains the application status of the “ back-to-back ” clause in the law.Finally,it is concluded that the “ back-to-back ” clause is in the legislative gap,and its judicial cognition isalso in disarray.The second part demonstrates the nature of the “ back-to-back ” clause,proves that it is conditional on the terms of the contract,and argues that the clause is not an independent liquidation clause,and concludes that the validity of the provision cannot be independent of the effect of the subcontract itself,that is,when the subcontract is avoided due to the act of subcontracting,illegal subcontracting,etc.,the“ back-to-back ” clause contained in the contract are certainly ineffective.The third part is based on the conclusion of the previous article,from the“ back-to-back ” clause as the result of the party autonomy of the contract,the“ back-to-back ” clause is essentially an efficient distribution between the parties on the risk of non-payment by the project owner and the recognition that the“ back-to-back ” clause is effective and harmless to the interests of migrant workers and social interests,and demonstrates the validity of the “ back-to-back ” clauses in legitimate subcontracting contracts.And finally draws the conclusion that the“ back-to-back ” clauses in the legal subcontracting contract should be lawful and effective under the current legal system of our country.The forth part shall be based on the legality and validity of the “ back-to-back ”clause in the lawful subcontract,in conjunction with the case,to clarify the respective obligations of the general contractor and the subcontractor with respect to the“ back-to-back ” clause;the obstruction of the general contractor’s plea when invoking the “ back-to-back ” clause;and the distribution of burden of proof in the event of a dispute.The last part is a summary of the views of this article.In short,in the current situation where the construction industry is in the buyer’s market can not be fundamentally reversed,it is undoubtedly in line with realistic needs to recognize the legitimate validity of the “ back-to-back ” clauses in legitimate subcontracting contracts,but the natural unfair suspicion of the clause and the requirement that there should be no direct link between the project owner and the subcontractor should also be given full attention.Therefore,the author suggests that the obligations of the general contractor and the subcontractor should be clarified on the basis of recognition of the legality and validity of the “ back-to-back ” clause in the lawful subcontract,and the reasons for determining the resistance of the general contractor in invoking the provision to defend,and the distribution of burden of proof in the event of a dispute in order to prevent further confusion in the constructionindustry as a result of the misuse of this clause. |
