建设工程施工黑白合同法律问题研究
发布时间：2018-11-26 14:56
【摘要】：改革开放以来,我国房产建筑业取得了飞速发展,在满足居民的住房需求的同时,也极大的拉动了经济总量持续的增长。但是,我们应当看到,我国房地产建筑业还处于初步发展阶段,相关法律制度不是很完善,房地产建筑业秩序也较为混乱,其中在建设施工领域充斥着大量的黑白合同,建设工程施工发包方与承包方为了躲避国家对建筑施工工程的监管或其他原因,往往在私下里签订与招投标备案施工合同实质性内容不一致的协议。这种协议的效力不仅仅关乎合同双方的利益,同时也涉及到建筑市场监管问题以及其监管背后所体现的公共利益。是否承认此种协议有效,是要维护契约自由,放活市场；还是要严厉监管,维护公共秩序,这涉及不同的价值取向。本文主要是在归类不同黑白合同的基础上,研究建设工程施工黑白合同效力,并列举相关案例来分析我国司法实践中在认定建设工程施工黑白合同效力以及处理建设工程施工黑白合同案件时出现的问题。依据自己对相关问题的认识,希望能提出处理此种问题时可供采纳的建议。本文除前言和结语外,共有三部分： 第一部分主要介绍了建设工程施工黑白合同概念,分析了黑白合同形成的原因,构成要件,并划分不同类型的建设工程施工黑白合同,从而形成对黑白合同的整体认知。 第二部分主要从我国司法实践在认定建设工程施工黑白合同效力时的处理展开,通过案例分析总结出我国司法实践中在审理此种案件时的不足以及相关法律规范存在的缺陷。 第三部分主要通过对上述两部分的分析,在划分不同类型黑白合同的基础上,对各种类型的施工黑白合同的效力及处理方法作出相应的分析。
[Abstract]:Since the reform and opening up, China's real estate construction industry has made rapid development, while meeting the housing needs of the residents, but also greatly promoted the sustained growth of the total economic volume. However, we should see that the real estate construction industry in our country is still in the initial stage of development, the relevant legal system is not very perfect, the order of the real estate construction industry is also relatively chaotic, among which there are a large number of black-and-white contracts in the field of construction and construction. In order to avoid the supervision and other reasons of the construction project, the contractor and the contractor often sign in private the agreement which is inconsistent with the substantive content of the construction contract. The validity of this agreement concerns not only the interests of both parties, but also the regulation of the construction market and the public interest embodied in the regulation. Whether to recognize the validity of such an agreement is to safeguard the freedom of contract and liberalize the market, or to strictly regulate and maintain public order, which involves different value orientations. On the basis of classifying different black-and-white contracts, this paper mainly studies the effectiveness of black-and-white contracts for construction projects. This paper also enumerates relevant cases to analyze the problems in the judicial practice of our country in determining the effectiveness of black-and-white contracts for construction projects and in dealing with cases of construction black-and-white contracts of construction projects. Based on your own understanding of related issues, I hope to put forward some suggestions for dealing with them. In addition to the preface and conclusion, this paper has three parts: the first part mainly introduces the concept of construction black-and-white contract, analyzes the reasons for the formation of black-and-white contract, And divided into different types of construction black-and-white contracts, thus forming the overall understanding of black-and-white contracts. The second part mainly from the judicial practice of our country in the determination of construction black-and-white contract effectiveness treatment, through the analysis of cases summed up in our judicial practice in the trial of such cases, as well as the shortcomings of relevant legal norms. The third part mainly through the analysis of the above two parts, on the basis of dividing different types of black-and-white contracts, the effectiveness of various types of construction black-and-white contracts and the corresponding analysis of the treatment methods.
【学位授予单位】：广西大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.297;D923.6
本文编号：2358873
[Abstract]:Since the reform and opening up, China's real estate construction industry has made rapid development, while meeting the housing needs of the residents, but also greatly promoted the sustained growth of the total economic volume. However, we should see that the real estate construction industry in our country is still in the initial stage of development, the relevant legal system is not very perfect, the order of the real estate construction industry is also relatively chaotic, among which there are a large number of black-and-white contracts in the field of construction and construction. In order to avoid the supervision and other reasons of the construction project, the contractor and the contractor often sign in private the agreement which is inconsistent with the substantive content of the construction contract. The validity of this agreement concerns not only the interests of both parties, but also the regulation of the construction market and the public interest embodied in the regulation. Whether to recognize the validity of such an agreement is to safeguard the freedom of contract and liberalize the market, or to strictly regulate and maintain public order, which involves different value orientations. On the basis of classifying different black-and-white contracts, this paper mainly studies the effectiveness of black-and-white contracts for construction projects. This paper also enumerates relevant cases to analyze the problems in the judicial practice of our country in determining the effectiveness of black-and-white contracts for construction projects and in dealing with cases of construction black-and-white contracts of construction projects. Based on your own understanding of related issues, I hope to put forward some suggestions for dealing with them. In addition to the preface and conclusion, this paper has three parts: the first part mainly introduces the concept of construction black-and-white contract, analyzes the reasons for the formation of black-and-white contract, And divided into different types of construction black-and-white contracts, thus forming the overall understanding of black-and-white contracts. The second part mainly from the judicial practice of our country in the determination of construction black-and-white contract effectiveness treatment, through the analysis of cases summed up in our judicial practice in the trial of such cases, as well as the shortcomings of relevant legal norms. The third part mainly through the analysis of the above two parts, on the basis of dividing different types of black-and-white contracts, the effectiveness of various types of construction black-and-white contracts and the corresponding analysis of the treatment methods.
【学位授予单位】：广西大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.297;D923.6
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