摘要(英) |
Because the period of executing the public construction contract
is too long, the construction cost is extremely high and the
interface for each task is complicated, there exist many
unpredictable risks for both parties from planning & design and
contract execution to examination & acceptance and
warranty. Thus, the owner often shifts the risk and the
responsibility onto the contractor by taking the advantage of
drafting the article in advance and even also shifts the risk of
losses resulted from any problematic point in the contract or
any unexpected disaster onto the contractor fully, both of which
are obviously unfair for the contractor.
Although the construction procurement contract model adopted by
the public construction is not binding or enforceable, all
construction authorities make the conditions of contract by
referring to such model, even without any word omitted. It is
seen that its influence is significant. For the method of making
a public construction contract, the public agency first makes a
draft contract in advance and then concludes the contract with
the contractor who tenders a bid. Such contractor only can agree
to the contents of contract but cannot make any suggestion or
amendment for the conditions of contract. Therefore, there are
many disputes in such contract, for example, unfair and
unreasonable clauses of the conditions or indefinite and
incomplete regulations. In addition, the public construction
involves such uncertain and unexpected factors as
professionality, unpredictability and high risk. For example,
the degree of damage caused by such unpredictable circumstances
as act of God, inflation, differing site condition and mass
demonstration, which are often seen in the process of executing
a construction contract, is not reasonably anticipated by both
experienced parties. And, it is the most difficult to divide the
responsibility for such resulted consequences. However, it is
often seen that the owner make a risk-shifting clause in the
construction procurement contract model or make a contract,
where both parties have unequal rights & obligations, in order
to be exempted from bearing any risk and
responsibility. Moreover, it is necessary to adjust the contract
duration and payment if any change after executing the
contract. If the contract was executed according its original
effect, then it would be obviously unfair for one of both
parties.
In order to prevent from any dispute about such obvious
unfairness resulted from unpredictable circumstances in the
contract execution process, this research will study and analyze
the disputes such as defects and omissions in the conditions of
existed public procurement contract model. This article first
will divide the disputes over the construction contract into
seven categories: contract payment, contract duration, contract
amendment, contract termination & dissolution, construction
quality control & warranty, disaster management & insurance, to
study the fairness, reasonableness, explicitness and integrity
of the division of rights, obligations & responsibilities
provided in the related conditions of contract. With the
integration of relevant risk allocations of domestic and foreign
construction contracts and with the legal uncertainty concepts
for both unpredictability and obvious unfairness discussed by
some scholars, we bring out the main point and particularize the
standard for judging both concepts according to the real
construction situation. Finally, according to such disputes
often seen in the process of executing the construction
contract, we study the related issues about the conditions of
the construction procurement contract model. Further, we judge
if the actual situation is applicable to the principle of change
of circumstances based on the standard for judging both
unpredictability and the obvious unfairness. And then, we adjust
the payment and the duration according to such request and
cannot restrict the rights & interests of contractor within the
original contract effect. In the end, this article provides some
related suggestions for reference. |