事实契约及其正当性之否定——兼评最高人民法院《建设工程施工合同司法解释》第2条

The Factual Contracts and Its Legitimacy Negation

事实契约说认为,基于社会接触之场合、团体关系之场合、社会给付义务之场合,契约关系得因事实行为而成立。我国《最高人民法院关于审理建设工程施工合同纠纷案件适用法律问题的解释》第2条虽然规定承包人在施工合同无效但工程经竣工验收合格时,得参照施工合同约定向发包人请求支付工程价款。但该条文在法律教义学上的请求权基础却并非事实契约法律关系,而应是不当得利。"参照合同约定"更确切地说,仅仅是当下一种较为合理的不当得利计算方式。

The theory of factual contract says, in three specific cases, whatever the intention of the parties is, contractual relationship are established due to the factual conduct： one is social occasions; the second is the occasion of intergroup relations; the third is social occasions of payment obligations. And this theory seems to have the same rationale basis with the 2nd article of the Interpretation of the Supreme People＇s Court on the application of legal issues in the disputes of the construction contract. In this article, employer, after accept- ance the qualified project, can be requested the payments of the construction regarding the illegal construction contract. But in fact, this article logic basis was the fight of claim for unjust enrichment. Actually, this article is just the specialization of the unjust enrichment claim, and this specialization is more economic to the con- tractor , and more saving litigation costs, ultimately more reasonable in protection the rights of migrant workers which are at the end of the food chains in construction engineering field .