施工合同文件组成与冲突的迷思

Myth of composition and conflict of construction contract documents

学界与工程、审判实务对施工合同组成文件存在不同认识,通过施工合同示范文本渊源考察,整理、分析与之相关的文献,揭示FIDIC合同条件约定施工组成文件基于英美法上的口头证据规则,依据我国法律无须约定已订入合同内容的合同文件为合同组成部分,并根据工程内涵、合同文件内容,对合同文件性质及难以避免的冲突进行分析,提出合同文件冲突实质是合同工程内容冲突观点,并分析技术标准和要求与图纸、招标工程量清单等及其内部冲突的解决办法。

On the constituent documents of construction contract, people from educational circles have different understandings with the people from engineering circle and the people from the circle of trial practice. Through investigating the source of model text of construction contract and collecting and analyzing relevant literatures, it disclosed that FIDIC contract conditions restrict the constitu- ent documents of construction contract based on the parol evidence rule of Anglo-American Law. According to the law of our country, it is not necessary to appoint that the contract documents with the contents integrated into the contract are the constituent part of con- tract. In addition, according to the engineering connotation and the content of contract document, it analyzed the nature of contract document and the conflicts that are hard to be avoided, and put forward that the conflict essence of contract document is the conflict opinions existing in the engineering content of contract, and analyzed the technical standards and requirements, the drawings and BOQ of bid, and the solutions for the internal conflicts between them.