Study On The "Pay-if-paid(Pay-when-paid)" Terms Of Construction Subcontracts

Constructionsubcontracting plays an almost irreplaceable role in today's various constructions.Although China has issued a series of regulations on the subcontracting system,these regulations are relatively fragmented and unsystematic,and there is no systematic legislation specifically for subcontracting.There are also few research articles on the subcontracting legal system in China,which leads to a series of legal problems in China's subcontracting.In the judicial practice,when the general contractor and the subcontractor sign the subcontract,the general contractor is in pursuit of self-interest,the relevant requirements and risks in the general contracting contract are often passed on to the subcontract(such as construction period,technical indicators,liability for breach of contract,etc.).Among these clauses,the most controversial issue is the “pay-if-paid(pay-when-paid)” terms on payment.Based on an in-depth and comprehensive analysis of the basic theory of construction subcontracting,this paper sorts out the legal issues related to the “pay-if-paid(pay-when-paid)” terms in construction g subcontracting,and links theory with practice,focusing on the nature,effectiveness and manifestation of “pay-if-paid(pay-when-paid)” terms.Try to summarize the identification of the “pay-if-paid(pay-when-paid)” terms in the judicial practice and the rules of the referee,and hope to provide some theoretical reference and enlightenment for the practice of construction management.The first part of this article is an overview of the “pay-if-paid(pay-when-paid)” terms and the basic theory of related construction subcontracting.Firstly,the “pay-if-paid(pay-when-paid)” terms and the basic concepts of construction subcontracting are sorted out,the concept and characteristics of construction subcontracting are summarized,and the nature of subcontracting is clarified.Secondly,it summarizes the provisions of the current “pay-if-paid(pay-when-paid)” terms clauses in China's laws and regulations and international subcontracts.The second part of this article is to study the current problems of China's “pay-if-paid(pay-when-paid)” terms.Firstly,it expounds the current definition of “pay-if-paid(pay-when-paid)” terms in the academic circles and judicial practice,and the differences between the judgments,that is,the contention and effectiveness of the “pay-if-paid(pay-when-paid)” terms.Secondly,it focuses on the nature of the “pay-if-paid(pay-when-paid)” terms,which are discussed in theory and practice.Whether it is a conditional clause or a term clause,The third part of this article is to study the effectiveness of the “pay-if-paid(pay-when-paid)” terms.Firstly,the contradiction between the principle of autonomy of will and the principle of fairness leads to disagreement on the validity of the “pay-if-paid(pay-when-paid)” terms.Secondly,through the in-depth study of the relationship between the autonomy of will and the principle of fairness,combined with the “pay-if-paid(pay-when-paid)” terms,the validity is affirmed;Exploring the court's determination of “pay-if-paid(pay-when-paid)” terms and refereeing rules in judicial practice.In the fourth part of this article,from the perspective of the general contractor,how to improve the “pay-if-paid(pay-when-paid)” terms in the subcontract and how to correctly use the “pay-if-paid(pay-when-paid)” terms to achieve the purpose of the general contractor to share the risk.