Study On The Legal Effect Of Audit Decisions On Government-invested Construction Projects Which Take The Legal Effect Of The Third Party As An Example

Audit institutions are specially established in accordance with the constitution and laws to conduct audit and supervision.In accordance with the provisions of the audit law of the People's Republic of China and the regulations on the implementation of the audit law of the People's Republic of China,audit institutions shall have the right to exercise supervision through auditing over the budget implementation and final accounts of government investment and construction projects mainly invested by the government.Audit decisions made by audit institutions within their statutory functions and powers shall have legal force,including the power of publicity,determination,restraint and enforcement.The audit supervision of government-invested construction projects involves two different legal relations and three subjects.The first kind of legal relationship is the civil legal relationship adjusted and regulated by the contract law of the People's Republic of China.The second kind of legal relationship is the legal relationship of audit supervision regulated by the audit law of the People's Republic of China.The main body of the legal relationship is mainly the audit institutions and construction units,and also includes the third party(construction enterprise)who has a legal interest in the audit supervision.National audit authority in accordance with the law of supervision through auditing over the government investment construction projects,can effectively prevent false,illegalbehaviors of much plan the project payment of construction enterprise,is beneficial to reduce corruption in the field of construction engineering,safeguard national interests and public interests,but may result in the payment and settlement cycle is too long,for project settlement money audit reduction will also affect the interests of construction companies.For audit decisions on legal effect(especially whether constraints as the third person of the construction enterprises),the judicial organ in the judicial practice is generally believed that: the audit is a kind of administrative supervision of the construction unit,shall not affect the construction units and contractors for the contract and in accordance with the contract of project settlement,unless it is expressly agreed in the contract and settlement of government auditing,or the amount of the developer in auditing or financial review as settlement according to the contract.Under such circumstances,the audited construction unit,in accordance with the requirements of the audit institution,requests the people's court to order the construction enterprise to return the overpaid project funds,often end in failure.As the audit decision cannot restrain the construction enterprise as the third party,the effectiveness of audit decision is difficult to be realized,which seriously affects the authority of audit supervision.In order to make the audit to determine the legal effect of implement,really should be appropriately expand the effectiveness of the audit decision,make the audit supervision and behavior can not only constraint is the audit of the construction unit,can also be constraints and audit results has a stake inconstruction enterprises,at the same time giving the third party to apply for administrative reconsideration or institute an administrative lawsuit relief rights.In addition,according to the complexity of construction project cost,the agreed cost and audit result are allowed to have certain error rate,and the relationship between the autonomy of good will and administrative supervision should be handled.