Study On The Legal Effect Of“Back-to-Back”provision In Construction Subcontracts

The "back-to-back" clause,as a typical contract risk prevention clause,often appears in subcontracts.In engineering practice,the legal effect of "back-to-back" clauses is highly controversial,and there is no clear legislation or judicial interpretation of its legal effect,and the academic field has not yet formed a unified view.Therefore,it is necessary to conduct an in-depth study on this issue.In this thesis,through sorting out a large number of cases,we have summarized and perfected five common forms of expression of "back-to-back" clauses in engineering practice,and sorted out and displayed the views of typical judges,and analyzed the legal nature of "back-to-back" clauses in different forms of expression,and conducted an in-depth study on their The legal effect of the "back-to-back" clauses is studied in depth.Firstly,the effectiveness of the "back-to-back" clause is analyzed under two different premises: validity and invalidity of the subcontract;secondly,the limitations of the existing theoretical views are pointed out through theoretical analysis and empirical research;finally,through comparative analysis,the idea of drawing on foreign experience is proposed.Finally,through comparative analysis,we propose to draw on foreign experience,and compared with the United Kingdom’s complete prohibition of "back-to-back" clauses,the U.S.law’s practice of classifying "back-to-back" clauses is more consistent with the objective situation of multiple expressions of "back-to-back" clauses in China.Therefore,this thesis believes that the "back-to-back" clauses in China can be typologically analyzed,divided into two models: precondition-based and payment term-based,and clarified the different legal effects under the two models.Finally,on the basis of the above analysis,the thesis proposes suggestions to improve the effectiveness of "back-to-back" clauses from two perspectives: improving the judicial and formulating industry guidelines.