There is no doubt that the system of the right of arbitrary termination of the ordering party can be applied to the employer.
B said: it negates that the employer does not have the right to terminate the contract arbitrarily in the construction contract of the construction project.
However, the dispute on this issue has not been settled due to the introduction of the above judicial interpretation.
According to the provisions of article 268 of the original contract law (which has been adopted as Article 787 of the civil code), the ordering party in the contract of work may terminate the contract of work at any time.
The construction contract of the construction project is a special contract.
During the construction, company a sent a notice of contract termination to company B, and then filed a lawsuit with the court to request the termination of the construction contract of the construction project, and asked company B to withdraw from the site within a time limit.
If the contract letting party is allowed to terminate the contract at any time, it will cause more losses, which is contrary to the legislative purpose of the system of the ordering party’s right to terminate at will.
Whether the contract letting party has the right to rescind the construction contract has been a controversial issue in judicial practice.
According to Article 808 of the civil code, the relevant provisions of the contract shall apply.
After searching, many courts supported the employer to exercise the right to terminate the contract arbitrarily by referring to the provisions in the contract law or the civil code that “the ordering party may terminate the contract at any time, and shall compensate for the losses caused to the contractor”.
Article 113.1 of the contract law of the people’s Republic of China “If a party fails to perform its contractual obligations or fails to perform its contractual obligations in accordance with the contract, thereby causing losses to the other party, the amount of compensation for losses shall be equal to the losses caused by the breach of contract, including the benefits that may be obtained after the performance of the contract, but shall not exceed the losses that the breaching party foresaw or should have foreseen at the time of concluding the contract, which may be caused by the breach of contract..
In addition, during the performance of the contract, both parties need to perform their obligations of assistance.
Second, from the perspective of legislative purpose, the system purpose of the ordering person’s arbitrary right to rescind is to reduce losses and prevent waste.
472) holds that: “The reason why the contract involved in the case was not fully performed was not attributable to the appellant.
If the employer is given the right to terminate at will, the imbalance between the two sides will be further aggravated, which will put the contractor in a more disadvantaged position and violate the principle of fairness.
Article 8 of the original interpretation of the Supreme People’s Court on the application of law in the trial of construction contract disputes, which came into effect on January 1, 2005, stipulates the employer’s right to rescind the contract.
Legal issues In the construction contract of a construction project, does the employer have the right to terminate at will? Different point of view a: it is certain that the employer has the right to terminate the construction contract at will.
There are still views that the employer has the right to terminate the contract at will.
After all, it is not logical to exclude the application of the employer’s right to terminate the contract at will in the field of construction contracts only on the grounds that the judicial interpretation lists the circumstances in which the employer can exercise the right to terminate the contract.
For example, Guizhou tianjinhui Photoelectric Technology Co., Ltd The civil judgment of the second instance of the construction contract dispute of Guizhou Guanling Ice and Snow Tourism Resort Development Co., Ltd.
After the promulgation and implementation of the civil code, paragraph 1 of article 806 of the law stipulates that if the contractor subcontracts or illegally subcontracts the construction project, the employer may terminate the contract.
However, the object of the general contract of work is usually the movable property with relatively small value, while the work achievement of the construction contract of the construction project is the project, which often involves huge investment, many subjects, and even concerns the national economy and the people’s livelihood.
It is not only an interpretation of the specific application of Article 94 of the contract law (which has been amended by article 563 of the civil code) in construction contracts, but also a limitation on the employer’s right to rescind the contract, In fact, they hold a negative attitude towards the employer’s right to terminate the contract arbitrarily.
Meanwhile, article 287 of the law (corresponding to Article 808 of the civil code) also stipulates: “where there are no provisions in this chapter, the relevant provisions of the contract of work shall apply.” The construction contract of the construction project is a special contract, and the contract law has no special provisions on the employer’s right of Rescission in the construction contract of the construction project.
On the contrary, it agreed to terminate the contract in the lawsuit.
According to the opinion of the judge meeting, the employer of the construction contract of the construction project does not have the right to terminate at will.
First, from the perspective of system interpretation, the Civil Code has stipulated the circumstances under which the contract letting party enjoys the right to rescind in the construction project contract, so the provision of Article 787 of the Civil Code on the right of the ordering party to rescind at will does not apply to the construction project contract in principle.
Therefore, the Employer of the construction contract of the construction project does not have the right to terminate at will, which is further clarified.
Therefore, the employer has the right to terminate the contract at will in the construction contract of the construction project.
([2021] Qian 04 Min Zhong No.
According to the above provisions of the contract law, it seems to be an inevitable conclusion that the employer has the right of arbitrary Rescission in the construction contract of the construction project.
If the employer is given the right to terminate the contract at will, even if the Contractor’s losses can be compensated through the compensation mechanism, it is bound to cause a great waste of social resources.
When the ordering party refuses to let the contractor complete the work, the judicial force requires both parties to continue to perform, which violates the nature of this kind of contract and objectively cannot be actually performed.
Article 787 of the Civil Code stipulates that the ordering party can terminate the contract at any time before the contractor completes the work.
As the employer, Guanling ice and snow company neither required the appellant to continue to perform the contract nor claimed that the appellant’s breach of contract led to the termination of the contract.
Third, from the perspective of fairness, at present, most contractors in China’s construction market are in a relatively weak position.
Company B requested the court to reject the lawsuit on the ground that company a terminated the contract without proper reasons.
Source: quick horse! Whether the Employer has the right to terminate the contract at will Abstract of the Minutes of the 18th Judges’ Meeting of the Second Circuit Court of the Supreme People’s Court in 2021 Company A and Company B signed an effective construction contract, agreeing that Company A would contract the project to Company B, and then Company B would enter the site for construction in accordance with the contract.
