For example, in the “appeal case of construction contract dispute between Ningbo Haichuan Electric Appliance Co., Ltd.
Third, in principle, the exception should not be applied by analogy.
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According to this article, the Employer can only request to terminate the construction contract of the construction project if the Contractor refuses to perform, delays performance, performs with defects, illegally subcontracts the contracted construction project, and illegally subcontracts.
For example, Article 9 of the Fujian Higher People’s Court’s Reply to Difficult Issues in the Trial of Construction Contract Disputes (2008), and Article 8 of the Hangzhou Intermediate People’s Court’s First Division’s Reply to Practical Issues in the Trial of Construction Project and Housing Related Disputes (2010) Article 4 of the Guangdong Higher People’s Court’s Reply to Difficult Issues in the Trial of Construction Project Contract Disputes (YGFF [2017] No.
Second, from the perspective of legislative purpose, Article 787 of the Civil Code stipulates that the ordering party may terminate the contract at any time before the contractor completes the work, with the main purpose of reducing losses and preventing waste.
Second, Article 8 of the Interpretation of the Supreme People’s Court on the Application of Law to the Trial of Construction Contract Disputes (FSH [2004] No.
Timely termination of the contract is conducive to reducing the losses of the parties and avoiding greater waste.
However, this does not exist in construction contracts.
It is not appropriate to assume that the Employer has the right to terminate at will.
Source: The Supreme Court of Law and the People’s Republic of China, Civil Trial Guidance and Reference, Vol.
14) has clearly stipulated the circumstances under which the Employer exercises its statutory right of rescission.
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 are no provisions in this chapter, the relevant provisions of the contract of work shall apply.” Chapter 18 of the contract part of the Civil Code has stipulated the circumstances under which the contract letting party enjoys the right of rescission, so the provisions of Chapter 18 of the contract part of the Civil Code should apply to the issue of the contract letting party’s right of rescission, instead of Chapter 17.
If it is not necessary to continue the construction of the construction project due to planning changes and other reasons, the Employer can exercise the right to terminate the contract through the principle of change of circumstances.
The system of arbitrary termination of a typical contract is an exception or special provision, and should not be included in the scope of analogy.
The ordered crops agreed in the contract are to meet the specific needs of the orderer.
Taking the housing under construction as an example, the housing construction project contract involves planning, approval and pre-sale circulation, as well as the government, developers, contractors and pre-sale buyers of commercial housing.
If the orderer no longer needs ordered crops due to changes in circumstances, it is unnecessary to continue to produce ordered crops.
Fourth, China’s civil judicial judgments do not support the application of arbitrary dissolution system to construction contracts.
Therefore, the construction in progress contract cannot be applicable to the arbitrary cancellation right of the ordering party.
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 arbitrary termination of the contract by the ordering party.
After the contract is established according to law, the parties shall strictly perform it.
In practice, it is very rare that the Employer does not need to build the project agreed in the contract after signing the construction contract.
From the academic point of view of the particularity of the construction contract and the prevention of social resource waste, the stability of the construction contract of the construction project should be maintained as much as possible.
87, Journal of Zhejiang Industrial and Commercial University, Issue 6, 2020 (author: Ning Hongli).
151) clearly points out that the exercise of the right to rescind the construction project contract by the employer must comply with the provisions of Article 8 of the Supreme People’s Court’s Interpretation on the Applicable Law in the Trial of Construction Project Contract Disputes, and the exercise scope of the right to rescind should not be arbitrarily expanded.
and Ningbo Xiangsheng Construction Co., Ltd.”, the court held that, from the perspective of the particularity of the construction contract of the construction project and the prevention of waste of social resources, the stability of the construction contract of the construction project should be maintained, so “the Employer should not have the right to terminate the construction contract of the construction project at will”.
In addition, the court of our country has formed a judicial consensus that the construction contract of the construction project cannot be terminated arbitrarily.
On the contrary, the contractor’s preparation for construction, mobilization and demobilization will bring high costs.
The specific reasons are as follows: First, the interests involved in the construction contract of the construction project are complex, and priority should be given to the value of maintaining the stability of the construction contract.
“The contract must be strictly observed” is the general principle of civil law.
If the contract cannot be kept stable, the legal relationship between the relevant subjects is bound to be in a state of disorder, which will cause a large waste of social resources.
Q Does the Employer have the right to terminate the construction contract of the construction project at will? A.
In this sense, Article 787 of the Civil Code is exceptional.
