A Study On Discount Compensation Of Invalid Construction Contract

The subject matter of the construction contract of a construction project is special in nature and can not be treated by returning the original object when the contract is invalid.Before the implementation of “ Civil Code ”,“ Contract Law ” and the relevant judicial interpretation of this situation to take “ Pay the project price as agreed by both parties ”,causing academic disputes on “Effective treatment of invalid contract”.“Civil Code”will be“In accordance with the contract agreement to pay the project price”to “Can refer to the contract agreement on the project price discount compensation”,such a change has caused a series of changes in judicial application.Therefore,the study of invalid construction contract construction discount compensation is conducive to judicial uniform application of the reference.There are deep reasons behind the above-mentioned changes in the rules for dealing with invalid construction contracts.The replacement of “ Payment of the contract price in accordance with the contract agreement”with “Compensation for discount in accordance with the contract agreement”eliminates the paradox of “Effective treatment of invalid contract”in theory.“Reference to the contract agreement”is only one way of compensation for discount,in this way,it can accord with the principle of the system of invalidity of contract.In the transition period between the old and the new rules,there are some problems,such as the confusion in the choice and application of the discount compensation method and the ambiguity in the application of the reference contract.For the compensation of invalid construction contract,the theory of cost with construction cost and the theory of payment with treatment,the latter has more legitimacy and rationality.Both the fixed price and the market information price in the theory of treatment and payment need to entrust appraisal,which increases the cost of litigation,reduces the efficiency of litigation,and the result of calculation is seriously out of line with the reality.“Reference Contract Agreement”has good social effect and can better balance the interests of the contractor and the contractor.In the application of “Reference to the contract agreement”to pay,the subject should not be limited to the contractor,that is,the employer or the actual construction workers can also claim the application of the method.The application of this way of the project no longer requires “Completion”,only to meet the quality of acceptance can be.The court shall first apply this provision,which may be excluded in exceptional circumstances and where there are sufficient grounds for doing so,by reference only to the method and standard of valuation contained in the contract for the price of the works,when the contract does not stipulate the price of the project,the part of the contract concerning the price is not true and there is an invalid contract and it is impossible to identify the actual performance or the newly signed contract,it constitutes an exception to the application by reference.The legal basis of this method is the right of claim for unjust enrichment and the scope of discount compensation should not exceed the scope of claim.In determining the specific scope,the profit,fees,taxes and interest shall be compensated;the management fee shall be decided on the basis of whether the contractor has actually carried out management activities;and the penalty for breach of contract shall not be supported.To avoid confusing the scope of compensation for damages with the scope of compensation for discounts,the basis of the right to claim compensation for damages is Culpa in Contrahendo,and the scope of compensation for invalid construction contracts is limited to direct losses only,no compensation shall be made for profit,interest,etc..