Thesis:research On The Intermediary Action In The Bid Invitation And Bidding Activity

The《Law of the People’s Republic of China on Bid Invitation and Bidding》came into effect since January 2000 and bid invitation and bidding activity should follow the principle of open,justice,fairness,honesty and credibility according to this law.Since the contract of large construction engineering activity,government procurement and other activities have been listed in the scope of compulsory tendering,all the enterprises involved in the bid invitation and bidding activity should follow the strict procure regulations and laws in the whole process of acquiring bidding information,joining the bidding activity,assessing the bidding activity and winning bidd:ing activity.However,in the bid invitation and bidding activity(hereinafter referred to as bid invitation and bidding),in particular the construction engineering areas,the intermediary actions taken by the inter-mediators entrusted by the bidders are often seen.Researches on this phenomenon are so far of deficiency but the forthcoming disputes brought by these intermediary actions are on the increase.In most cases,the lawsuits are about the dishonor by the bidders after they win the bidding.Failure to abide by the agreement reached between the bidder and the inter-mediator results in the prosecution from the inter-mediators.But,the judges made by law are rather in confusion:some pronounce the intermediary action legal and valid and therefore support the inter-mediators while some pronounce the intermediary action invalid for it violates the principle of open,justice,fairness,honesty and credibility entitled by +Law of the People’s Republic of China on Bid Invitation and Bidding》.Moreover there are even judges which cut down the allowance should be paid by the bidders according to the right of discretion when pronouncing the intermediary action valid.The discordance of these judges reflects there is no unified opinion of this phenomenon in legal profession.With the high-speed development of Chinese economy,the infrastructure construction engineering and real estate development are booming around the nation.Since the bid invitation and bidding activity always involve a huge sum of economic benefits,the amount of money involved in these legal disputes is usually staggering and has far-reaching influences.Especially in recent years,with the anti-corruption campaign getting fiercer,more corruptions in the construction engineering areas are exposed and become the severely afflicted areas.Thus,the clarification of intermediary actions in bid invitation and bidding activity could not only promote the uniformity of law application but also contribute to the lawsuit practices.This thesis includes five chapters:the first chapter is introduction.Author puts forward the question of acknowledging the intermediary action based on a lawsuit case which has totally different judges in the trial of first and second instances.Through analyzing the academic opinions and supporting reasons,author researches on the reason of this judicial judge by court.Therefore the analyzing method is forwarded by the author.In chapter two,the author compares the history,development,revolution as well as the social influence between intermediary system and bid invitation and bidding system and comes to the conclusion that intermediary action has no economic value in the bid invitation and bidding activity.In chapter three,the author argues that the intermediary action is neither legal nor reasonable in the bid invitation and bidding activity by criticizing the supporting reasons and judicial causes of judging that as legal and valid.In chapter four,the author finds out the law basis of banning the intermediary action in bid invitation and bidding actions from the perspective of history explanations and teleology through the methodology of interpretative theory.But the deficiency of interpretative theory is aware by the author at the same time and he holds the view that establishing relevant laws should be the ultimate solution to this disordered judges in terms of intermediary actions.Chapter five is the conclusion part and author reiterates the significance of banning intermediary activity in bid invitation and bidding actions.In this thesis,the author views the law as a method of readjusting social relationships.When intermediary activity is contributing to the bid invitation and bidding system and having positive economical and social influences,its validity should be clarified and protected by the law.When its function is the opposite,the law should forbid this intermediary action from making any further negative influences.Thus,without restricting in the scope of established rules and regulations of Chinese law system,the author is analyzing this topic from the perspective of teleology and concludes that the intermediary action will not promote the positive economic values but jeopardize the effect of bid invitation and bidding system and may result in "bidding collusion","bribe-taking by non-official civil servants" and other crimes.Based on the above-mentioned reasons,the author reaches to the conclusion that banning intermediary is necessary.Furthermore,the author argues law should be established under the theory of interpretative and legislation.Hope this thesis will help to bring some hints to the final clarification of this topic.