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OleksiyDYBA,

Judge, the Obolonsky District Court of Kyiv, graduate student of the Research Institute of Private Law and Entrepreneurship named after Academician F. G. Burchak of the National Academy of Legal Sciences of Ukraine

LEGAL CONFLICTS IN DEFINING THE CONCEPT OF A CONTRACT FOR CONSTRUCTION WORKS

The article analyzes the issues related to the definition of the concept of a contract for conducting design works under the Civil and Commercial Codes of Ukraine. Particular attention is paid to the correlation of definitions of this agreement stipulated in Art.887 of the Civil Code and Art. 324 of the Commercial Code of Ukraine. It is established that the conflict in approaches to the legal regulation of homogeneous legal relations is reflected in: a) different names of one agreement; b) the possibility of attracting third parties for performing individual stages of work at the typological level; c) fixing the obligation to conduct both search and design work; d) the impossibility of applying the provisions of a contract of contract for capital construction to legal relationships for conducting both search and design work. It’s proposed to exclude Art.324 from the Commercial Code of Ukraine as an article which introduces an imbalance in the legal regulation of relations of conducting design and search works.

It was established that the normative-legal approaches to the regulation of relations on carrying out design and search works on the Soviet time were characterized by the allocation of the sub-legal normative legal acts of the contracts for conducting design and search works as a variant of the agreement of contract with their assignment to the sphere of capital construction. The obligation of conducting design work was due to two different legal facts: the existence of a contract and on-order. It is substantiated that the contract for the execution of design works along with the contract for conducting search works are independent varieties of the contract. Accordingly, despite the fact that in today’s realities, in most cases, the contract for the design work is most in demand in the construction industry, the legislator quite rightly consolidated approaches to legal regulation of relations for the conduct of design and construction work in various sections of Chap. 61 of the Civil Code of Ukraine. As a result, it seems impossible to apply building construction rules to contracts for conducting design and search works, and vice versa, as suggested in the Soviet time.

The general signs of a contract on conducting search works are as follows: a) operational independence of the contractor; b) performance of the contractor at his own risk; c) performance of work according to the customer’s instructions; d) performance of work at the expense of the contractor; e) the individually defined nature of the subject of the contract, expressed in a certain material form; e) a thing created under a contract belongs on the right of ownership to the contractor until the acceptance of the work performed by the customer; e) the thing created under a contract belongs on the right of ownership to the contractor until the acceptance of the work performed by the customer; i) absence of significant novelty in the subject of the contract (this agreement does not create scientific and technical results). Specific features of the contract for the design work include: a) the specificity of the design work and its result (reflected in the development of design estimates and / or technical documentation); b) the obligatory presence of a task for designing and other output data (in the contract for carrying out design work the task of the customer is formulated in the initial data); c) the tendency to perform only those works that involve obtaining a result separate from the work itself; d) the possibility of conducting design work without the use of specific material. On the basis of the performed characteristics it’s offered to consider a contract on conducting design works as the arrangement on which the contractor undertakes to develop design estimates or other technical documentation by the tasks of the other party (the customer), as well the customer undertakes to transfer the task for design and other output data to the contractor, accept and pay the result.

Key words: contract of contract for conducting design works, capital construction, project-estimate documentation, tasks for designing, operational consistency of the contractor, contractor’s risk.

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