In a sense, market economy is legal economy, more precisely, it is contract economy and contract economy. Modern society can be said to be a contract society. The success or failure of an enterprise is closely related to contract and contract management. Therefore, we must attach great importance to contracts and contract management. Contract management must be whole process, systematic and dynamic. The whole process is from negotiation, drafting, signing and taking effect until the contract expires. We should not only pay attention to the management before signing, but also pay attention to the management after signing. Systematization means that all departments involved in contract terms should be managed together. Dynamic is to pay attention to the changes in the whole process of performance, especially to grasp the changes that are unfavorable to us, and modify, change, supplement or suspend or terminate the contract in time. We can't put the contract on the shelf just because we signed it. We should prevent being punished for poor contract management. In this paper, the author makes an in-depth analysis of the common problems exposed in the management consultation of construction enterprises in recent years, and puts forward some countermeasures, hoping that the relevant managers can strengthen the contract management of construction enterprises and safeguard the legitimate rights and interests of enterprises.
First, the main problems existing in the contract management of construction enterprises:
(1) Problems in the contract signing stage:
Common problems in the contract signing stage are:
1. Improper contract subject. The qualification of the parties to a contract is one of the prerequisites for the effective establishment of a contract. The first condition for a qualified subject is that the parties to the contract have corresponding civil rights capacity and capacity for civil conduct. Two tendencies should be prevented here: first, although they have the above two abilities, they are not parties to the contract, that is, the parties are misplaced and the subject of the contract is improper; Second, although it is a party to a contract, it does not have the above two abilities and is also an improper subject of the contract.
2. The contract text is not rigorous. Inaccuracy means inaccuracy, which easily leads to ambiguity and misunderstanding, making the contract difficult to perform or controversial. A valid contract concluded according to law shall reflect the true meaning of both parties. And this embodiment only depends on accurate and clear contract words. It can be said that the contract is about words.
3. The terms of the contract are missing. That is to say, it is incomplete, incomplete, defective and flawed. What is often overlooked is the liability for breach of contract. Some contracts only speak good words, not bad words; Only talk about the positive, don't talk about the negative, and don't know the trick of "being a villain before a gentleman" when signing a contract. Once there is a breach of contract, there is no provision in the contract on how to deal with it.
4, only from the contract without the main contract. A master contract refers to a contract that can exist independently, such as a general contract for construction projects. Subordinate contract refers to the contract that can only be established on the premise of the existence of the main contract, such as construction project subcontract, guarantee contract, mortgage contract, etc. A subordinate contract without a master contract is an unfounded contract, which is "passive water" and "passive water" does not exist.
5. Sign an invalid contract in violation of laws and regulations. Article 52 of the Contract Law stipulates that a contract signed in violation of the mandatory provisions of laws and administrative regulations is an invalid contract and is not protected by law. At present, many contracts signed by construction enterprises, some of which cover up illegal purposes in legal form, are essentially invalid contracts.
6. Questions about the text of overseas contracts. After China's accession to the WTO, some contracts were written overseas. Due to different national conditions, different languages and translation problems, there are many doubts in these contract texts. We can't avoid these problems, so we must make it clear in the contract, understand their meaning, or plug their loopholes to avoid losses.
(II) Problems in the performance stage of the contract:
1. The modified contract has not been changed. It is normal to change the contract during the performance of the contract. The problem is that many managers responsible for contract performance lack the awareness of timely changes, resulting in losses. Contract changes include changes in contract contents and changes in contract subjects. The purpose of contract change is to ensure the better performance of the contract and the realization of some purposes by modifying the original contract. As contractors, it is more important for construction enterprises to safeguard their legitimate rights and interests. The key is to change in time.
2. The letter (meeting minutes) that should be sent was not sent. It is necessary for construction enterprises to send necessary letters in time in the process of contract performance, which is the need of dynamic contract management, a means of contract performance and a means of self-protection. Unfortunately, this is often overlooked and punished. The "Construction Contract for Construction Projects (Model Text)" regards the written agreement or documents of both parties on project negotiation and change as an integral part of the contract. Therefore, we must pay enough attention to it.
3. If the visa should be confirmed, the visa confirmation has not been processed. It is normal to get a visa during the performance. However, the on-site managers of some construction companies do not pay attention to this point, and when a dispute occurs, they lose because they can't prove it.
What should be investigated has passed the statute of limitations. The situation that the construction industry is in arrears with the project payment is quite serious. Some did not resort to the law, but when they sued, they found that the statute of limitations had passed for two years and the losses could not be recovered. Exceeding the limitation of action means giving up the right to claim creditor's rights and the right of the obligee to win the lawsuit.
5. The exercised power was not exercised. The contract law gives the parties to the contract the right of defense, but most construction companies will not exercise it. If the employer fails to pay the progress payment as agreed in the contract, the construction company can exercise the right of defense against work stoppage, but it will not exercise it, fearing that it will bear the liability for breach of contract if it stops work unilaterally. In this way, objectively, the construction is ahead of schedule, and the amount owed by the owners is increasing, making the problem more difficult to solve.
6, should pay attention to the legal effect of evidence (data) but not enough attention. Not all written evidence has legal effect. The valid evidence shall be the original, relevant to the facts, stamped and/or signed, clear in content and within the time limit. Written evidence without legal effect is just a piece of waste paper.
Second, the main reasons for the problems in contract management of construction enterprises:
Asking questions is to solve problems. This paper tries to solve the problem from the angle of root cause, so it deeply analyzes the root cause of the problem.
(A) historical roots
Today's construction enterprises, especially the old state-owned enterprises, mostly come from the planned economy period, and many enterprise leaders and managers have the color of planned economy in their thinking mode, management method and management system. In the era of planned economy, the construction task was assigned by the higher authorities, and it was undertaken according to the geographical division of labor and settled according to the financial allocation (plus some enterprises raised their own funds). Everything is under control of the superior plan. Construction enterprises only pay attention to production, not management, not to mention any benefits. The employer only needs a "power of attorney" for the task, and both parties simply don't say that there is no contract, as long as there is a "power of attorney". Similarly, there is no contract between the main contractors. Therefore, in the more than 30 years of planned economy, construction enterprises basically have no contract, so there is no contract management.
In the early 1980s, the opening and reform of the construction industry gradually turned from a planned economy to a market economy, resulting in market competition. The acquisition of construction tasks is no longer issued by superiors, but through bidding, and the winning construction unit signs a construction contract with the contractor. The vast number of employees in the construction industry began to contact contracts and introduced contract awareness and contract management. However, because it was in its infancy, the contract at that time was very irregular and there was no model text. The content of the contract is too simple and rough, and even there are loopholes, which leads to a lot of classes and a lot of tuition fees. A little profit earned by a project's hard work ended up in a lawsuit because of a loophole in the contract, and even the capital was lost. As the leader of construction enterprises, I deeply feel the importance of contracts and the importance of strengthening contract management.
Compared with the early 1980s, the contract management of construction enterprises is much more perfect now, which can be said to be basically in place. However, due to the residual influence of the planned economy system for more than 30 years, there are still problems similar to 12 mentioned in this paper in contract and contract management.
(2) Understand the root cause
Mainly because many employees in the construction industry lack understanding of the relationship between market and contract, contract and contract management.
First of all, there is a lack of understanding of the relationship between market and contract. Under the condition of market economy, this is an interdependent relationship. On the one hand, the operation of the market needs contracts. The contract law stipulates that there are three forms of contract: oral form, written form and other forms. These three forms summarize all the trading behaviors in the market. In other words, the market depends on the contract, and all parties in the market depend on the contract to fulfill their rights and obligations. On the other hand, the establishment of a contract must be based on the market. No market, no contract. Contract is the product of the market and the driving force for its sustainable development. Some people in the industry don't understand the inevitable relationship and interdependence between the market and the contract. They only care about the market to undertake tasks, but they don't sign contracts or sign them hastily. There is no basis for negotiation and mediation when disputes occur, or the basis is insufficient.
Secondly, there is a lack of understanding of the relationship between contract and contract management. This is also an interdependent relationship. Contract management is the whole process management of contract negotiation, drafting, signing, performance, change, suspension, termination or dissolution. Contract came into being in the early stage of contract management. At this stage, it is often highly valued. Once the contract is signed and the construction task is in hand, the contract will be shelved or even forgotten, forgetting that the contract performance process is a process of realizing rights and obligations, but just treating it as a production process and returning to the old concept of planned economy. Therefore, most of the problems in contract management appear in the middle and late stage of performance. But this does not mean that there is no problem in the early stage. Most of the problems in the early stage were because they were eager to sign the contract, so they were too hasty or accommodating to the employer. Because of this, the problem in the first part of this paper arises.
Enterprise contract management refers to a series of behaviors such as conclusion, performance, alteration, dissolution, transfer, termination, review, supervision and control of contracts with enterprises as parties according to law. Among them, conclusion, performance, alteration, dissolution, transfer and termination are the contents of contract management; Review, supervision and control are the means of contract management.
For the market, the importance and necessity of enterprise contract management lies in: realizing enterprise's commitment to the market, embodying enterprise's integrity, enhancing enterprise's brand and image, making enterprise stand firmly in the market and realizing sustainable development.
For enterprises, the importance and necessity of contract management are as follows: on the one hand, the production and operation of enterprises are connected with the market to meet the market demand and improve the ability of enterprises to adapt to the market and participate in market competition; On the other hand, it is to enable enterprises to safeguard their legitimate rights and interests and improve economic benefits in the process of performance.
Thus, enterprise contract management is a core content of enterprise management under the condition of market economy, and all aspects of enterprise management should be carried out around this core. Successful enterprise contract management is to decompose the rights and obligations of the contract into various departments according to the division of functions, and each department will perform the rights and obligations within its own scope of functions. Only in this way can contract management be truly put in place and the performance of responsibilities be truly implemented. It can be said that enterprise contract management is a systematic project, which needs the cooperation of subsystems. An important reason for the problems raised in the first part of this paper is that the performance responsibilities between departments are unclear, not communicated and not implemented, which leads to mistakes. Contract management needs information communication and processing more than other management.
(3) Legal roots
This refers to the legal origin of the contract. The fundamental reason lies in two lags: the lag of contract law and the lag of our consciousness of contract law.
In the early days of the planned economy, there was no contract law in China, because the planned economy did not need contracts, so there was no need for contract law. China's Economic Contract Law was promulgated later than 198 1 1 February. By March 1985, the foreign economic contract law was promulgated, and in June 1987, the technology contract law was promulgated. However, the three contract laws can't keep pace with the development of market economy, and many new contract issues are blank in law. 1993 revised the economic contract law, but this revision was only temporary, and did not eliminate the coexistence of various laws in the contract law and the conflicts between related laws and regulations. It was not until March 1999 that a unified contract law was formulated. Thus, China's contract law is lagging behind. In other words, in the process of reform and opening up in the past 20 years, in the process of market economy in the past 10 years, the contract law environment we are in is not perfect.
Due to the lag of contract law, coupled with the above-mentioned historical and cognitive roots, our construction enterprise employees' understanding of contract law is even more lagging behind. The most obvious performance is that they don't know the relationship between contract and contract law. When concluding and performing a contract, we often break away from the contract law, write as we like, and sign as we like, lacking the consciousness of concluding and performing according to law, which leads to the problems in the first part of this paper and causes many mistakes and losses. We say that the contract law is the legal basis for the whole process of contract conclusion and performance, that is to say, the contract should be concluded according to law. The function of contract law is to maintain the socialist market order and develop the socialist market economy. From the microscopic point of view, it is to standardize the behavior of the parties to the contract and safeguard their legitimate rights and interests. Any contract signed outside the contract law is invalid and not protected by law.
Institutional root
This refers to the lack of strict contract management system in enterprises, which fails to reflect the requirements of standardization, legalization and scientificity of contract management.
Due to the above three fundamental reasons, the enterprise contract management system lags behind and can't keep up with the objective requirements of contract management. In the early days of reform and opening up in the construction industry, enterprises only had contracts, but no contract management. Due to the loss of tuition fees, the contract management system of enterprises began to be established, but it is not perfect. It was not until the middle and late 1990s that it was constantly supplemented and improved, and there were rules and regulations in all aspects of the whole process from contract negotiation, signing, performance, change to suspension or termination and dissolution. So far, the contract management of enterprises can be said to be basically rule-based (it can not be said that there are no gaps and dead ends). However, due to the above three reasons and the influence of the old customary forces, the phenomenon of breaking the rules still appears from time to time. Therefore, the problems exposed in the first analysis of this paper also arise.
In practical work, I deeply realized that the formulation of the system is important, but it is more important to implement it. There are no rules to follow, no rules to follow. Moreover, with the standardized operation of the market and the development and changes of the market situation, new problems and new requirements will constantly appear in contract management, which requires us to constantly improve the original contract management system.
Three, the main countermeasures to solve the problems existing in the contract management of construction enterprises:
(A) improve the quality of contract management personnel.
Improving the quality of contract managers is the primary task of enterprise contract management, and it is also an urgent need at present. We can start from the following four aspects:
1, select the right person. Enterprise leaders can choose the outstanding talents of their own enterprises as contract managers according to the quality conditions that contract managers should have, and can also select people through public evaluation and competitive recruitment. Adhere to the principle of survival of the fittest in the use process, and put outstanding talents in this position.
2. Organize on-the-job learning. According to the reality of enterprises and markets, contract managers can be organized for on-the-job learning. There are various ways and means: assign learning tasks and check them regularly; Conduct short-term training; Combined with the actual analysis, the positive and negative cases are summarized; Listen to TV lectures and take an examination of law or economic management majors. At the same time, professional ethics education must be carried out. Through the above efforts, you will become a talent in the post.
3. Send it to relevant institutions for further study. Every enterprise should cultivate excellent contract management personnel, so it is necessary to choose the backbone who loves socialism, works well and has a bright future to enter relevant colleges and universities for further study. Enterprises should be willing to spend money on intellectual investment.
4. Establish post responsibility system. It is necessary to implement the post responsibility system for contract managers, clarify the responsibilities, rights and interests, establish a competitive mechanism, and reward the contributing enterprises and contract managers.
Through the above ways, the quality of enterprise contract managers will be comprehensively improved, including ideological level, legal level, Chinese level and professional ability.
(2) Establish and improve the contract management system of enterprises.
Mainly to establish and improve the organizational network and institutional network of enterprise contract management.
Organizational network refers to the establishment and improvement of contract management institutions (including full-time institutions and part-time institutions) from top to bottom, so that enterprise contract management covers every level of the enterprise and extends to every corner. Generally speaking, large and medium-sized construction enterprises should set up full-time contract management departments at headquarters, full-time or part-time contract management departments at branches and contract management positions in project management departments. If there is a legal department, then this department should cooperate with the contract management department to play the role of legal consultation, contract review, performance supervision and organization of arbitration and litigation.
Institutional network means that enterprises should establish and improve concrete and operable systems for every link in the whole process of contract management, so that contract management can be followed by rules. These links include: contract negotiation, drafting, review, signing, release, disclosure, learning, responsibility decomposition, performance tracking, change, suspension, dissolution and termination. Second, all levels of an enterprise should have their own contract management system. The headquarters should establish and improve the overall contract management system, the branches should supplement their own contract management system according to their own needs, and the project management department can also make some necessary supplements.
Establishing and perfecting the contract management system of construction enterprises must be based on China's Contract Law, relevant laws and regulations and the actual situation of enterprises. The Contract Law is a summary of the experience and lessons of contract management since the founding of the People's Republic of China, especially since the reform and opening up, and it is also the practical application of contract theory. Chapter 16 of the "Specific Provisions" has made special legal provisions on the construction project contract, which is more conducive to our construction enterprises to standardize their own contract management and safeguard their legitimate rights and interests. In particular, Article 286, for the first time in history, gives construction enterprises the right to be compensated first in the discount or discount income of construction projects. Most of the legal provisions of the contract law can be incorporated into the enterprise contract management system.
The organizational network and institutional network of contract management constitute the enterprise contract management system. It is necessary to ensure the operation of the system through regular inspection. It is necessary to check whether the contract management organization and system meet the needs of contract management and market demand. Make necessary adjustments to inappropriate parts. In short, the contract management system should also be dynamically controlled, adjusted in time and constantly improved.
(3) Actively participate in the activities of "honoring contracts and keeping promises" to improve the contract management level of enterprises.
The above two governance measures are internal strategic measures, and actively participating in the activity of "respecting contracts and keeping promises" is an external measure, aiming at promoting internal contract management with the help of external measures.
The activity of "honoring contracts and keeping promises" is an activity carried out by the administrative department for industry and commerce according to the principle of good faith in the contract law, aiming at improving the contract performance rate and maintaining the market order and economic order.
Enterprises should actively participate in the activities of "honoring contracts and keeping promises" and create an atmosphere of "honoring contracts and keeping promises".
It is the business leaders who should make the activity plan, define the annual target, designate the contract management department, implement the personnel to engage in this work, and regularly check the development situation, find and solve the existing problems in time, so as to carry out the activities continuously and healthily.
The second is to carry out targeted work according to the six standards of the activity and combine this activity with enterprise management.
The most important of these six standards is that the performance rate of contracts signed by enterprises must reach 100%, except for force majeure, the other party's breach of contract and the termination of contracts agreed by both parties. Because performance depends on the efforts of the whole enterprise and the cooperation of all aspects of enterprise management, it must be combined with the whole enterprise management, among which contract management bears the brunt. 100% performance rate is the highest requirement of contract management, and we can't tolerate any carelessness, otherwise it will not meet the standard. This activity is undoubtedly a powerful promotion and severe constraint to the contract management of enterprises.
Third, vigorously promote the construction contract model text (GF- 1999-020 1).
Because the performance rate has a great relationship with the quality of the contract. A good contract text is conducive to performance. The activity of "honoring contracts and keeping promises" requires the implementation of model contracts. The model text recommended by the Ministry of Construction and the State Administration for Industry and Commerce is compiled according to the contract conditions of civil engineering construction in Fidyk and the experience and lessons of China's construction industry since the reform and opening up. Comprehensive, accurate and rigorous, with strong operability. This is a good contract text. The use of this text will help to plug the loopholes caused by the legal and linguistic aspects of contract managers, clarify the responsibilities of contract subjects and solve contract disputes. Because this text is not mandatory, it is only for reference and recommendation, so some contractors do not use it and draft it themselves. For these self-made texts, we should pay attention to comparing them with the model texts when reviewing them to prevent errors, omissions or ambiguities. It is best to mobilize employers to use model texts in the activity of "emphasizing contracts and keeping promises" to improve the quality of contract texts.
Fourth, strive for the guidance and support of the administrative department for industry and commerce.
The administrative department for industry and commerce is responsible for the supervision and management of contracts, and strives for the guidance and support of * * * *, which is not only conducive to the macro contract management of enterprises, but also conducive to preventing the occurrence of invalid contracts and fraud from the micro level, coordinating the relationship between contract subjects, improving the performance rate, and striving to become an enterprise that values contracts and keeps promises.
For more information about project/service/procurement bidding, and to improve the winning rate, please click on the bottom of official website Customer Service for free consultation:/#/? source=bdzd