About the authors: Lawyer Xu Yinyi, lawyer of Jiangsu kaishiman law firm, master of law of Nanjing University, former notary and section chief of Nanjing Third notary office, director of Beijing Mingde Tiansheng Investment Management Center (limited partnership), etc
.
The papers “legal issues of contract termination caused by the government’s failure to deliver land in accordance with the contract under the condition of” listing of rough land and delivery of net land “transfer mode” and “Research on the contract effectiveness of pile foundation projects directly contracted by construction units” were published in national and provincial journals
.
At present, we provide perennial legal advisory services for several real estate development companies and construction companies
.
The arbitration jurisdiction is stipulated in the construction contract of the construction project, but if the employer states in the letter of payment that it can sue, and the Contractor does not object, the employer has the right to sue
.
Case information trial court: Huai’an intermediate people’s court ﹣ appellant (original defendant): Jiangsu Kuangyi Energy Co., Ltd
.
﹣ appellee (original plaintiff): Huai’an Hongheng Construction Engineering Co., Ltd
.
﹣ case No.: Huai’an intermediate people’s Court (2018) Su 08 min Zhi Zhong No
.
54 ﹣ judge: Hua Lin, Li qianbing, Zou Yanping ﹣ judgment date: March 28, 2018 ﹣ basic facts of the case “Kuangyi energy company and Hongheng construction company signed in April 2017 the construction contract for the second floor fire protection renovation project of the first workshop and the construction contract for the second floor decoration renovation project of the first workshop, which agreed that both parties should request the Huai’an Arbitration Commission to mediate and arbitrate in case of any dispute during the performance of the contract
.
On November 22, 2017, the repayment plan issued by Kuangyi energy company to Hongheng construction company stated that if Kuangyi energy company fails to repay in full according to the repayment plan in one period, Hongheng construction company has the right to file a lawsuit to the local court on relevant matters
.
After Kuangyi energy company failed to pay as planned, Hongheng construction company filed a lawsuit to the court
.
” After Hongheng construction company filed a lawsuit, Kuang Yi energy company filed an objection to jurisdiction, which was rejected, and then filed an appeal
.
The court of second instance held that the two construction contracts signed by both parties in April 2017 were legal and effective
.
Although both parties agree that arbitration is the solution to the dispute, the repayment plan issued by Kuangyi energy company to Hongheng construction company on November 22, 2017 clearly states that if Kuangyi energy company fails to repay in full according to the repayment plan, Hongheng construction company has the right to file a lawsuit to the local court
.
If Hongheng construction company accepts the repayment plan and does not raise any objection, it shall be deemed that both parties have changed the agreement on dispute resolution
.
Therefore, Hongheng construction company has the right to file a lawsuit to the people’s court according to the repayment plan
.
The parties have the right to make an agreement on the settlement of the dispute, which can be changed by mutual agreement
.
This kind of change can be either express or constructive
.
In the case that one party explicitly allows the other party to solve the dispute by other means, it actually gives up its right of defense in the way of solving the dispute
.
According to the principle of good faith and estoppel, when the other party resolves the dispute in a way permitted by itself, it shall not raise a defense
.
—
.
