Regulation Of The "Back To Back Terms" In Construction Subcontract

China’s contract law and the judicial interpretation of the construction project contract have not regulated the "back to back terms" of the construction project subcontract,and the theoretical circles have different opinions on the legal nature of the the "back to back terms".In the absence of academic theory and legal provisions,the practice of the "back to back terms" has no rules to follow,which is not conducive to the protection of the legitimate rights and interests of both parties to the subcontract,Therefore,it is necessary to clarify the legal nature of the "back to back terms" fundamentally,and regulate it accordingly,so as to realize the balance of rights and obligations between the general contractor and the subcontractor.This paper will be divided into four parts to discuss the the "back to back terms" : the first part is the interpretation of the "back to back terms" in the construction project subcontract,explains the "back to back terms" in practice and law,and puts forward the author’s definition based on the detailed analysis of the logic and nature of the "back to back terms",the "back to back terms" refers to the terms agreed by the general contractor and the subcontractor in the subcontract in order to share the risk of the employer’s failure to pay or delay in payment,which takes the employer’s payment as the premise of the general contractor’s payment,or the employer’s payment as the starting point of the general contractor’s payment period.The second part is about the different treatment of the "back to back terms" in the domestic and foreign practice.The author reveals the confused situation of the "back to back terms" in the practice through the sorting of the cases in the past year.At the same time,according to the different treatment of "pay if paid terms" and "pay when paid terms" in foreign countries,the author draws on its reasonable regulation mode.The third part is the interpretation of the legal nature of the the "back to back terms".It introduces the main points of view about the nature of the "back to back terms" at present,including the conditional civil legal act,the conditional terms,the term terms and the agreement of the payment term.The author thinks that the "pay if paid terms" should be the conditional terms,and the "pay when paid terms" should be the payment term.The fourth part is the improvement of the regulation of the "back to back terms" in the Construction Subcontract.It is suggested that the effectiveness and regulation of "back-to-back terms" should be judged comprehensively and objectively by distinguishing the effectiveness of the contract,the different types of "back to back terms" and the identification of standard terms,and it is suggested that the regulation of "back-to-back terms" should consider the coordination and cooperation between the freedom of contract and the justice of contract.In certain circumstances,the affirmation of the effectiveness of the "back to back terms" is based on the embodiment of the freedom of contract,while the application of such rules as standard terms,the system of grossly unconscionable,the principle of changed circumstances and the distribution of burden of proof is also the need for the maintenance of the justice of contract.