Second, from the perspective of legislative purpose, article 787 of the Civil Code stipulates that the ordering party can terminate the contract at any time before the contractor completes the work, with the main purpose of reducing losses and preventing waste.
If the obligee has notified the termination in accordance with the provisions of article 96 of the contract law, and then sue to confirm the effectiveness of the termination of the contract, and request a judgment on the legal consequences of the termination of the contract, the role of the people’s court judgment in such disputes is to confirm whether the parties have the right to terminate the contract, and whether the parties have legally terminated the contract, rather than making the decision to terminate the contract on behalf of the parties, Or decide when the contract between the parties should be terminated.
The people’s court needs to comprehensively consider whether the contract can continue to be performed, whether the parties are in a deadlock in the contract and whether there is a change of circumstances, and make a judgment on whether the contract is terminated, that is, the right to decide the fate of the contract is not in the hands of the parties, but by the court.
The observant party can either claim its rights in litigation or request the court to terminate the contract.
Second, the way of exercise is different.
When the legal conditions are met, the right of rescission is generated.
However, this situation does not exist in the construction contract of construction projects.
If the conditions for terminating the contract are fulfilled, the unilateral expression of intention will lead to the termination of the contract relationship upon reaching the other party, without the consent of the other party.
After hearing, if the people’s court finds that the obligee’s termination of the contract complies with the provisions of the law, it shall confirm that the contract is terminated on the date of the arrival of the notice of termination, and make a direct judgment on the legal consequences of the termination of the contract.
If the employer is allowed to terminate the contract at any time, it will cause greater losses, which is just contrary to the legislative purpose of the ordering party’s arbitrary termination of the contract system.
In practice, it is rare for the employer not to build the contracted project after signing the construction contract.
Moreover, at the time of filing a lawsuit, because it has not yet entered the substantive trial, it cannot draw a conclusion that which party is the observant party or the defaulting party, so it should be collectively referred to as the exercise of the parties.
If the ordering party no longer needs the ordered crops due to changes in circumstances, there is no need to continue to produce the ordered crops.
Q: does the employer have the right to terminate the construction contract of the construction project at will? Answer: it is not appropriate to assume that the employer has the right to terminate at will.
The people’s court is required to make a judgment to terminate the contract.
The difference between exercising the right to terminate the contract and applying for judgment to terminate the contract the difference between exercising the right to terminate the contract and applying for judgment to terminate the contract mainly includes the following points: first, the nature of rights is different.
To apply for judgment to terminate the contract is for the parties to exercise the right of action, which can be exercised by either party, but it needs to be submitted to the people’s court.
The reasons are as follows: first, from the perspective of system interpretation, article 808 of the civil code of the people’s Republic of China (hereinafter referred to as the civil code) stipulates: “if there is no provision in this chapter (Note: it is the construction project contract in Chapter 18), the relevant provisions of the contract of undertaking shall apply.” Chapter 18 of the contract part of the civil code has made provisions on the circumstances under which the employer has the right to terminate, so the provisions of Chapter 18 of the contract part of the civil code should be applied to the issue of the employer’s right to terminate, and the provisions of Chapter 17 should not be applied.
If the defaulting party recognizes the termination of the contract, the observant party does not need to file a lawsuit with the court; If the defaulting party does not recognize that the contract has been terminated, the non defaulting party shall bring a lawsuit to the court, and its petition shall be to confirm that the contract has been terminated, and the date of receipt of the notice shall be taken as the time point of termination, rather than the lawsuit of change.
The contract will be terminated when the notice reaches the opposite party.
As mentioned above, the exercise of the right to terminate the contract should comply with the provisions of article 96 of the contract law, that is, “if a party claims to terminate the contract in accordance with the provisions of paragraph 2 of Article 93 and article 94 of this law, it should notify the other party.
If the obligee has not previously exercised the right to terminate the contract by notifying the defaulting party to terminate the contract, but directly files a lawsuit to request the people’s court to terminate the contract, the people’s court shall terminate the contract by judgment if it finds that the obligee’s claim to terminate the contract conforms to the legal provisions after trial, and the contract shall be terminated from the date of the judgment..
In the trial practice, it should be handled according to the situation.
It can be seen that when the person with the right to terminate notifies the other party of the intention to terminate the contract, the contract will be terminated.
If the other party has objections, it can request the people’s court or arbitration institution to confirm the effectiveness of the termination of the contract”.
It is a procedural right to seek relief from the public authority, which is subject to the court ruling and the judgment of the public authority.
Of course, the observant party mentioned above can either terminate the contract by exercising the right of termination or terminate the contract by applying for judgment, which is just equivalent to that the observant party exercises the right of termination by itself and submits it to the court for judgment.
For example, if one party is in fundamental breach of contract, the observant party sends a notice of termination of the contract and claims compensation for losses, payment of liquidated damages, etc., regardless of whether the breaching party recognizes the termination of the contract, the termination of the contract has occurred.
Third, the results are different.
In terms of the time of dissolution, it also has retrospective effect.
The legal right of rescission is the right of formation, which is the substantive right between the parties.
Exercise the right to terminate the contract.
Timely termination of the contract is conducive to reducing the losses of the parties and avoiding greater waste.
Only the observant party unilaterally enjoys the substantive right.
On the contrary, the Contractor’s preparation for construction, mobilization and demobilization will bring high costs.
The application for judgment to terminate the contract is only the exercise of the right of action, which cannot be confused with the substantive rights such as the right of domination and the right of formation.
The right of rescission has the characteristics of “unilateral notice can terminate the existing contractual relationship”.
If the construction project is not necessary to continue due to planning changes and other reasons, the employer may exercise the right to terminate the contract through the principle of change of circumstances.
No matter whether the obligee sues later or not, the time point is subject to the receipt of the notice.
The ordered crops agreed in the contract of work are to meet the specific needs of the ordering party.
Both the observant party and the breaching party can exercise it.
