合同履约效率改善视角下工程变更柔性条款设置研究
发布时间：2018-08-19 14:06
【摘要】：工程变更为建设项目带来了一系列的负面效果,包括投资失控,工期延长,发承包双方纠纷不断等。部分研究者从提高项目绩效的角度出发,指出柔性是一种应对工程项目潜在变化的能力。向合同注入柔性可灵活地应对项目实施过程中出现的不确定事件,控制工程进度与工程成本。但在实践中同时存在着合同柔性的决策悖论。即若发包人采用柔性合同,则变相允许了承包人的后契约机会主义行为。若发包人不采用柔性合同,则容易导致项目应对或然事件的灵活性变差。鉴于此,本文从合同履约效率的角度出发,探索了工程变更条款的适度柔性问题。本文主要包括以下研究内容。首先,本文利用文献勾选法将工程变更解构为工程变更控制权和工程变更价款调整两部分。随后分别分析现行的合同范本与深圳地铁5号线及北京地铁4号线两大实际案例,总结归纳出工程变更控制权类的条款包括工程变更的提出、工程变更事项和价款的审批、工程变更价款支付时间,工程变更价款调整类条款包括工程量偏差引起综合单价改变的比例、合理化建议的审批和收益共享奖励系数、风险包干范围几大类。其次,本文运用扎根理论的研究方法,以承包人机会主义行为、字面履约行为和完美履约行为分别表征合同履约效率的低、中、高,构建了工程变更条款影响履约效率的模型。得出变更审批类条款刚性设计可降低承包人机会主义行为,转而实施字面履约行为甚至完美履约行为;变更价款类条款柔性设计可促进承包人由实施字面履约行为转而实施完美履约行为,从而提高合同履约效率。最后,本文嵌入合同状态理论,得出合同状态改变类条款柔性设计、合同状态不变类条款刚性设计、刚性条款保证柔性条款执行的三个变更条款设计原则以及适当柔性的工程变更条款设计建议。本研究从合同柔性的视角,回归工程变更条款,引入承包人行为评价合同履约效率,系统探讨了合同履约效率最大化标准下的工程变更适当柔性条款的设置问题。这对减少发承包双方工程变更纠纷,促进双方合作行为具有一定的指导意义。
[Abstract]:The project change has brought a series of negative effects to the construction project, including out of control of investment, extension of construction period, disputes between the two parties. From the point of view of improving project performance, some researchers point out that flexibility is a kind of ability to cope with the potential changes of engineering projects. Infusing flexibility into the contract can flexibly deal with the uncertain events that occur during the implementation of the project and control the progress and cost of the project. However, in practice, there is a decision paradox of contract flexibility at the same time. That is, if the contractor adopts the flexible contract, then the contractor's post-contract opportunism behavior is allowed in disguise. If the contractor does not adopt the flexible contract, the flexibility of the project to deal with the contingency will become worse. In view of this, this paper explores the moderate flexibility of the project change clause from the point of view of contract performance efficiency. This paper mainly includes the following research contents. Firstly, this paper deconstructs the engineering change into two parts: the control right of engineering change and the adjustment of project change price. Then it analyzes the existing contract model, Shenzhen Metro Line 5 and Beijing Metro Line 4 respectively, and summarizes the items of control right of project change, including the proposal of project change, the item of project change and the examination and approval of price. The payment time of the project change price, the adjustment clause of the project change price includes the proportion of the comprehensive unit price change caused by the deviation of the project quantity, the examination and approval coefficient of the rationalization proposal and the reward coefficient of the income sharing, and the scope of the risk contract. Secondly, this paper uses the research method of rooted theory to characterize the low, medium and high performance efficiency of the contract by the opportunistic behavior of the contractor, the literal performance behavior and the perfect performance behavior, respectively, and constructs the model that the project change clause affects the performance efficiency. It is concluded that the rigid design of the examination and approval clause can reduce the opportunistic behavior of the contractor and implement the literal performance behavior or even the perfect performance behavior. The flexible design of changing the price clause can promote the contractor to perform the contract from the literal performance to the perfect performance, thus improving the performance efficiency of the contract. Finally, this paper embed the theory of contract state, and obtained flexible design of contract state change clause, rigid design of contract state invariant clause, Rigid clauses guarantee the implementation of flexible clauses three change clause design principles and appropriate flexible engineering change clause design recommendations. From the point of view of contract flexibility, this study returns to the project change clause, introduces contractor behavior to evaluate the contract performance efficiency, and systematically discusses the setting of the appropriate flexible clause of engineering change under the maximization standard of contract performance efficiency. It has certain guiding significance to reduce the disputes of project change and to promote the cooperative behavior of both parties.
【学位授予单位】：天津理工大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6
[Abstract]:The project change has brought a series of negative effects to the construction project, including out of control of investment, extension of construction period, disputes between the two parties. From the point of view of improving project performance, some researchers point out that flexibility is a kind of ability to cope with the potential changes of engineering projects. Infusing flexibility into the contract can flexibly deal with the uncertain events that occur during the implementation of the project and control the progress and cost of the project. However, in practice, there is a decision paradox of contract flexibility at the same time. That is, if the contractor adopts the flexible contract, then the contractor's post-contract opportunism behavior is allowed in disguise. If the contractor does not adopt the flexible contract, the flexibility of the project to deal with the contingency will become worse. In view of this, this paper explores the moderate flexibility of the project change clause from the point of view of contract performance efficiency. This paper mainly includes the following research contents. Firstly, this paper deconstructs the engineering change into two parts: the control right of engineering change and the adjustment of project change price. Then it analyzes the existing contract model, Shenzhen Metro Line 5 and Beijing Metro Line 4 respectively, and summarizes the items of control right of project change, including the proposal of project change, the item of project change and the examination and approval of price. The payment time of the project change price, the adjustment clause of the project change price includes the proportion of the comprehensive unit price change caused by the deviation of the project quantity, the examination and approval coefficient of the rationalization proposal and the reward coefficient of the income sharing, and the scope of the risk contract. Secondly, this paper uses the research method of rooted theory to characterize the low, medium and high performance efficiency of the contract by the opportunistic behavior of the contractor, the literal performance behavior and the perfect performance behavior, respectively, and constructs the model that the project change clause affects the performance efficiency. It is concluded that the rigid design of the examination and approval clause can reduce the opportunistic behavior of the contractor and implement the literal performance behavior or even the perfect performance behavior. The flexible design of changing the price clause can promote the contractor to perform the contract from the literal performance to the perfect performance, thus improving the performance efficiency of the contract. Finally, this paper embed the theory of contract state, and obtained flexible design of contract state change clause, rigid design of contract state invariant clause, Rigid clauses guarantee the implementation of flexible clauses three change clause design principles and appropriate flexible engineering change clause design recommendations. From the point of view of contract flexibility, this study returns to the project change clause, introduces contractor behavior to evaluate the contract performance efficiency, and systematically discusses the setting of the appropriate flexible clause of engineering change under the maximization standard of contract performance efficiency. It has certain guiding significance to reduce the disputes of project change and to promote the cooperative behavior of both parties.
【学位授予单位】：天津理工大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6
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