Research On Construction Qualification And Confirmation Of Construction Project Contract Validity

Recently,‘jerry-built' projects,collapses of bridges in construction field are common among the newspaper,which arises our attention on the construction quality issues of construction field.Construction qualification management serves as an action of guaranteeing quality of construction.In judicial field,in order to serve the legislative purpose of guaranteeing quality of construction and orderly development of construction market,the contracts signed by subjects without qualification are usually declared invalid by the courts.The regulations regarding construction qualification are viewed binding regulations,for the reason that the judicial interpretation expressly stipulated that contracts violating the qualification regulations are invalid.However,whether the judgement of invalid contracts is reasonable is worth discussing.This article generalizes and analyzes several opinions about validity of contracts violating qualification regulations and the rationale before the opinions.Since contracts violating qualification regulations are regarded invalid,it is fair to infer that the regulations are binding rather than persuasive,however,the theory behind this conclusion is still incomplete,the reasoning of which is still ambiguous.Compared to the development methods of binding regulations of foreign countries,the judging that such regulations are binding lacks rationality.Thus this article,according to the current law,analyzes the legal consequences of invalid contracts,focusing on the principles of construction settlement amount clauses system need to be followed,evaluating the rationality of system from various perspectives.The two points above are comprehensively analyzed based on current statutes which stipulates that contracts are invalid while settlement price clauses are applied,from the perspective of self-consistency of statues,so as to rethink declaring such contracts invalid.Contracts are viewed invalid while price stipulated by the contract is paid,the main rights of constructing party are realized,but the invalidity of contracts remains unsolved because of remaining issues.Rethinking the rationality of related system begins in the real effectiveness of system,finding the related regulations violates the principle of honesty of contract,the subjects being dishonest could gain unjust benefit,which leads to the impossibility of legislative purpose.Therefore,declaring the contracts violating qualification regulations are invalid but applying the price clauses in the contracts makes the statutes lack self-consistency.Analyzing from the aspect of binding regulations and effectiveness of applying price clauses of contracts,this article advises to rebuild the rules of validity of construction contracts.Creating of legal rules requires the solid basis of qualification management,therefore,the starting point of it is to optimize the management system,the priority of it is to take actions of guarantee quality ofconstruction.After researching related rules of construction field,under the consideration of current management ability of construction and international development condition,this article appeals for combination of construction insurance institution,construction supervision institution and company credit institution.On the basis of raising managing ability of qualification and guaranteeing construction quality,stressing the principle of ‘market is dominant,government is auxiliary',the related regulations shall be cautiously viewed binding,rather,according to the principle of reasonable difference,it shall be viewed as persuasive regulations first.A method of weakening the qualification management which realized by invalidating contracts is to replace it with administrative penalty,this complies with the transforming rule of government.Even if we regard such regulations binding,we could also innovate the mitigation after invalidating contracts,so as to solve real problems.