Research On The Regulation Of Unilateral Alteration Right Of The Contract Owner In Construction Project

The employer’s right of unilateral change is a privilege enjoyed by the main body of the construction project contract.Although it can’t be stipulated in the private law,it widely exists in the engineering practice.In recent years,the contract disputes caused by the employer’s unilateral right to change are increasing.In order to prevent the Employer from arbitrarily changing the contract by taking advantage of the unilateral right to change the contract and infringing the rights and interests of the contractor,it is necessary to regulate the exercise of the right.Starting from the lack of the current regulation system of the right of unilateral change of the employer,in order to solve the problem of the construction project contract performance obstacles caused by the ineffective regulation,the comparative research method,interdisciplinary research method and case study method are used,starting from the legal principles,combined with the current industry norms,and taking into account the characteristics of strong professionalism,long duration and wide influence of engineering practice,This paper constructs the entity and procedure regulation system of the employer’s unilateral change right in the process of construction contract performance.At present,there are two problems in theory and practice in the regulation of the right of unilateral change of the employer of construction project contract.One is that there are conflicts in the limit of change,procedures and adjustment rules in the alternative industry standard text under the background of the absence of legislation,which is mainly reflected in the differences in the connotation and scope of the right of unilateral change between engineering and law circles,The second is to judge the validity of unilateral change order and change compensation rules in judicial practice.The reason is that the substantive regulation rules of the right of unilateral change of the employer are simple and solid,which leads to the differences in the identification of the right subject and one-sided and single authority setting;As well as the reality of regulatory measures become mere formality,which shows that the phenomenon of emphasizing entity over procedure is prominent,and the external regulatory procedures are not timely involved in the control.Therefore,it is particularly necessary to regulate the right of unilateral change of the employer to make up for the deficiencies of the existing regulations and reduce contract disputes.Strengthening the entity regulation of the right of unilateral change of the employer is conducive to the promotion of contract justice,and strengthening the procedural regulation is also the adherence to procedural justice Starting from the existing change paths and principles of the parties involved in the construction project and the current standard control,this paper constructs a controllable and feasible regulation system of the employer’s unilateral change right from the entity and procedure.Therefore,in order to solve the above problems,we should take both substantive regulation rules and procedural regulation measures:In terms of substantive regulation,firstly,the connotation of the employer should be strictly defined,and the right subject of unilateral change right should be clearly defined.The representative of the employer can exercise the unilateral change right instructions related to the employer within the scope of authorization,and the engineering and technical personnel who are responsible for the site can also exercise the unilateral change right of the employer within the scope of their duties,When the supervisor and the supervising engineer exercise the employer’s right of unilateral change within the scope of their authority,the technical change order is valid,but the economic change order shall be invalid in principle;Secondly,the employer is required to exercise the right of unilateral change in order to meet the four requirements of "occurring in the process of contract performance + necessary to achieve the purpose of the contract + minimum impact of the means of exercise + compensation to the opposite party of the contract";Thirdly,systematic indexes are set up to evaluate the reasonable limit of the employer’s unilateral right to change from three aspects:extending the identity of the contract,maintaining the characteristics of the project,and within the payment capacity of the contractor;Finally,it establishes the cost adjustment rules based on the principle of consideration system,"direct loss + full compensation for the loss of available interests" and the construction period adjustment rules based on the extension of the key route.In terms of procedure regulation,FIDIC red book is selected to make a comparative analysis with the current industry guidance code "17 version of construction contract model text",to make up for the shortcomings of the lag of contractor intervention,the lack of evaluation procedures and the evaluation system after the change.In the process of internal regulation,through game theory and system design,the employer’s obligation of notification of change is enhanced,the pre change review and consultation is improved,and the change signing and execution confirmation and post evaluation system are strengthened,In order to form a comprehensive,scientific,feasible and controllable procedure regulation system,we should introduce administrative regulatory agencies from outside,strengthen the tracking,review,evaluation and accountability of changes after examination and approval,and form a multi-channel and information-based external regulatory network.