1, understanding of transaction costs
Transaction cost is the core category of western new institutional economics. His thought originates from Coase's classic paper "The Essence of Enterprise", the essence of which is that transaction cost is the cost of using price mechanism. Later, Coase concretized this idea in The Problem of Social Cost. Coase believes that transaction cost is the cost of obtaining accurate market information, as well as the cost of negotiation and conventional contract. Williamson divides transaction cost into two parts: pre-transaction cost and post-transaction cost. Pre-transaction cost is the cost of signing a contract and stipulating the rights and responsibilities of both parties to the transaction. After-the-fact transaction expenses mainly include supervision, reward, dispute settlement, mortgage, breach of contract and other expenses.
After more than 30 years of development, various economists have different interpretations of transaction cost theory, which is mainly caused by their different analysis angles. To sum up, transaction cost is the unproductive expenditure such as time, energy, manpower, material resources and financial resources to complete an exchange. Generally speaking, it mainly includes the cost of collecting information, negotiation cost, signing cost, performance cost, supervision cost and possible dispute settlement cost.
2. The transaction cost analysis in the process of project payment dispute settlement.
Price is the most concerned issue of the construction unit and the construction unit in the construction contract, because price is a direct reflection of the economic interests of both parties to the contract. Because of this, project payment disputes are the most common disputes in construction projects, and many other kinds of disputes are finally reflected in contract price disputes. Broadly speaking, there may be price disputes in various periods of engineering construction. For example, there may be a bid bond dispute in the bidding process; There may be a performance bond dispute after winning the bid; There may be prepayment disputes when starting construction; There may be disputes between progress payment and claim payment in the construction process; There may be disputes over the completion settlement payment at the time of completion; After completion, there may be disputes over quality warranty money, and so on. The existence of a large number of project payment disputes has caused a large number of transaction costs in the process of handling. In the process of investigating the arrears of project funds by construction units, many construction units increase and delay the arrears of project funds because of the high transaction cost. The reasons mainly lie in the following aspects:
2. 1 There are many transaction costs in the process of transferring the exclusivity of assets.
The reasons for the existence of transaction costs mainly include three aspects: asset exclusivity, opportunism and restricted rational thinking. Asset exclusiveness is the root of transaction cost, and rational thinking on opportunism and restriction is mainly the study of people. The transaction process of a construction project is actually the exclusive transfer process of assets. The construction unit will hand over the construction right of building products to the construction enterprise, and the construction enterprise will hand over the building products to the construction unit after the completion acceptance. Since the signing of the construction contract, the exclusivity of assets has been transferred, and there are a lot of transaction costs in the process of transfer.
In the process of construction, the project payment disputes caused by the owner's failure to pay the progress payment on time are not uncommon. According to the relevant laws and regulations, if the employer fails to pay the progress payment within the time stipulated in the contract, the contractor has the right to send a notice to the employer for payment. If the employer still refuses to pay after receiving the notice from the contractor, it may negotiate with the contractor to sign a deferred payment agreement, and the payment may be postponed with the consent of the contractor. However, if the employer fails to pay the progress payment on time and both parties fail to reach an agreement on deferred payment, the construction enterprise has the right to suspend the construction, and the employer shall bear the liability for breach of contract. At this point, the construction enterprise can completely terminate the contract and ask the owner to pay the progress payment and claim compensation, but why do the construction enterprises rarely do so? The main reason is that construction enterprises will spend a lot of money if they give up the exclusivity of assets at this time. The specific analysis is as follows:
1) In order to compete for the construction right of construction projects, construction enterprises will spend a lot of money, such as bidding fees, negotiation fees, signing fees, bid bonds, performance bonds, advance payment deposits paid to ensure the signing and performance of contracts, and other expenses spent to compete for asset exclusivity. In addition, construction enterprises have invested a lot of costs to ensure the smooth progress of the construction, such as the cost of temporary facilities, the use of machinery and the cost of purchasing contracts signed with other material suppliers to ensure the construction. These expenses are part of the project cost. These expenses will be compensated when the contract is successfully performed and the project funds are paid on time. However, if the contract is terminated at this time, the expected contract price cannot be recovered, and these expenses become the price of exchange. If the contract is terminated at this time, many enterprises will suffer huge losses and even go bankrupt. Therefore, construction enterprises have to bite the bullet and recover the arrears while constructing.
2) If the contract is stopped, the construction enterprise will fall into a long-term dispute settlement. The construction enterprise has the right to require the construction unit to bear the corresponding liability for breach of contract and compensate for the losses. But how easy is it to compensate? Even if the lawsuit is won, it is very difficult to ask the court to enforce it: First, most construction units raise funds while constructing, so it is difficult to pay so much compensation at one time; Second, the court lacks legal provisions in the implementation process; Third, building products can't play an application role even if they are pledged in the construction process. In other words, the exclusive property of construction enterprises can not be compensated, and the transaction cost of dispute resolution is undoubtedly worse for construction enterprises.
3) If the construction enterprise withdraws from the transaction during the performance of the contract, it will bring great losses to both parties to the contract. However, because it is a buyer's market, the construction unit can transfer these costs and risks to another construction enterprise, but the construction enterprise faces greater risks. If the construction enterprise quits midway, it may be accused of bad reputation, which will bring huge losses to the future bidding. Therefore, once most construction enterprises sign a contract with the owner, it is difficult to quit the transaction process. Owners seize the weakness that construction enterprises will not stop performing the contract halfway, and often owe a lot of project funds under the influence of opportunism of "reasonable breach of contract is beneficial to breach of contract".
2.2 In the process of settlement of project payment disputes, due to imperfect laws and regulations and insufficient government supervision, a large number of transaction costs are caused.
The application of laws and regulations also requires costs. As a scarce resource, the efficiency of laws, regulations and rules will directly determine the transaction cost. Due to the imperfection of laws, regulations and systems, it will also bring opportunistic costs to exploit loopholes in laws and systems. Project payment disputes run through the whole construction process. However, when dealing with disputes, due to the lack of laws and regulations to refer to, the existing laws and regulations are not operable, and the government's role in this process is not prominent, which leads to low system implementation efficiency and increased transaction costs.
For example, Article 286 of the People's Republic of China (PRC) Contract Law (hereinafter referred to as the Contract Law) stipulates: "If the employer fails to pay the project payment as agreed, the contractor may demand the employer to pay the price within a reasonable period of time. If the employer fails to pay within the time limit, the contractor may agree with the employer to discount the project or apply to the people's court for auction according to law, except that it is not appropriate to discount or auction the project according to the nature of the construction project. The construction project price takes precedence over the project discount or auction price. " Article 286 of "Contract Law" makes the construction industry see the hope of solving the problem of project payment default. However, in practice, there are few cases in which this clause has been successfully used to solve project payment disputes. This is not because enterprises are unwilling to use laws to protect their legitimate rights and interests, but because of the defects of this article itself. Because the provisions of Article 286 of the Contract Law are too rough and lack of maneuverability, there are obstacles in the court's trial of cases based on it, both in entity and procedure. This will increase the cost of using this clause in case handling and execution. Therefore, many construction enterprises do not want to use legal means to safeguard their rights and interests, but it is difficult to bear the cost of safeguarding their rights and interests.
As a third party, the state can reduce transaction costs by establishing impersonal legislative and law enforcement agencies. However, due to the complexity of transactions in the construction industry, the government's supervision on contract performance and dispute resolution is not enough, and sometimes it can't be followed or even lax in law enforcement, which increases transaction costs, such as rent-seeking fees and supervision costs. In addition, according to the relevant data (as of September 5, 2005, the national accumulated arrears of project funds completed before 2003 were 654.38+08.6 billion yuan, of which the total arrears of government investment projects were 70.5 billion yuan, accounting for 37.9% of the total arrears), the government arrears accounted for a large proportion of the current arrears of project funds. As a government agency that formulates and supervises the implementation of the system and a debtor, the situation of construction enterprises can be imagined. Step 3: Solution
There are huge differences in transaction costs under different systems. The so-called system cost is the operating cost of a system. The perfection and operability of the system is one of the main measures to reduce transaction costs.
3. 1 Improve existing laws and regulations and improve operability.
The importance of laws and regulations is that their existence can reduce many transaction costs. Because complete laws and regulations can reduce various transaction costs caused by bounded rationality, information asymmetry, external diseconomy and other factors in market transactions through a series of standardized, fixed and mandatory contractual arrangements. However, at present, the laws and regulations applicable to the arrears of project funds in China are not operable and even conflict. For example, although Article 286 of the Contract Law stipulates the contractor's right of priority in payment of project funds, there are still three controversial theories in the legal field, namely lien theory, legal mortgage theory and priority theory, because this article does not clearly stipulate the nature of the right of priority in payment of project funds. Another example is the Building Law of People's Republic of China (PRC) promulgated by 1997 (hereinafter referred to as the Building Law). However, the second paragraph of Article 18 of the "Building Law" has only a rough provision on the project payment: "The contractor shall pay the project payment in time according to the agreement." How long is this reasonable period? In view of the incompleteness of these laws, we should further clarify and supplement them, improve their operability, make engineering disputes have laws to follow, reduce the cost of using the system, and effectively protect the legitimate rights and interests of construction enterprises.
Out of the misunderstanding that more systems are better, the most economical system is the simplest and most operational system. Thus, in the process of system formulation, the simplicity and operability of laws and regulations are improved, and the cost of applying laws and regulations in the recovery of arrears by construction enterprises is reduced.
3.2 Further improve the integrity system and the disciplinary system for dishonesty.
As opportunism is one of the main causes of transaction costs, taking effective measures to improve the integrity level of the construction industry, vigorously advocating everyone's integrity and creating a good integrity atmosphere can save a lot of transaction costs. The relevant departments in charge of the construction industry should establish and improve the integrity files, and expose the construction units that are in arrears with the project payment during the inspection. Make use of the existing network system to announce the untrustworthy enterprises in time, accept external supervision, increase the pressure of public opinion and create a good credit environment. In addition, the disciplinary system of dishonesty is implemented, and the construction units and enterprises that are seriously in arrears with the project payment are subject to a one-vote veto system when applying for real estate development and contracting projects, or are downgraded or disqualified during the annual inspection.
3.3 Give full play to the role of the government in the supervision process.
As the main supervisor of the system implementation, the government should give full play to its role in the supervision process, perform its functions fairly and justly, and reduce the rent-seeking cost in the transaction process. In addition, strictly examine and approve the "performance project" and "image project" led by the government to avoid unreasonable debt construction.
4. Concluding remarks
In the process of solving the arrears of project funds, the high transaction cost is a big obstacle for construction enterprises to recover the arrears. System is the key to reduce transaction costs, because human opportunism and bounded rationality exist objectively. A perfect system can greatly standardize people's behavior, improve the efficiency of performance, reduce transaction costs, and thus effectively solve the problem of project payment arrears.