| 英文摘要 |
Government construction procurement has a higher risk, making the risk of encountering unforeseen or force majeure during the performance of the contract is higher than other transaction behaviors. Therefore, the contract changes clauses play a fast and efficient way to resolve disputes and reduce the cost of the disputes so that the construction can be completed smoothly and promote the public interest. This article believes that in accordance with the provisions of the construction procurement contract, the entity may, has the right to make changes within the general scope of the contract if necessary, but the entity’s change right only on the extends of“within the general scope of the contract”or“scope of work”. As for the“remuneration”and“the period of contract performance,”the entity does not have unilateral decision-making power. The contractor can still reserve the right to dispute the contract change remuneration, the period of contract performance, and other matters, as long as the system is designed to allow effective remedies to allow the contractor to obtain reasonable remuneration. It can take into account both the principle of freedom of contract and the needs of construction practice, it should be more appropriate and efficient. The entity’s contract change right allows the entity to have the“right”to unilaterally instruct contract changes, but this should also be the“obligation”of the entity to make contract change. If a case situation requires a change of contract to achieve the purpose of the contract, it is in accordance with the contract agreement the entity is obliged to handle contract modification, or although it has not been agreed, but in accordance with the principle of good faith, an entity shall have the obligation to make the contract change and must do it. Furthermore, construction contract usually stipulates that contract changes should be made in writing, even if the agreement is not written in writing, it is invalid. In practice, an entity verbally instructs the contract change, he should make the contract change but refuses to do so, can the contractor request remuneration? what is the basis and scope of the claim? Foreign construction practice considers this situation to be a“constructive contract change”, and the legal effect is the same as a formal contract change. However, since there is no such provision in our country’s law, this practice still lacks a legal basis in our country. It is necessary to reconstruct the basis of claim right and its scope of compensation. |
