| In the work contract,the acceptance obligation stipulated in the second sentence of Article 261 of the Contract Law was seriously ignored.With regard to this obligation,the provisions are relatively sloppy,and there are few relevant studies.In fact,unlike other contracts,the acceptance obligation plays a vital role in the contract,and its key position should be demonstrated.The acceptance is rich in content.In addition to obtaining the physical possession of the subject matter,the ordering person also needs to confirm whether the subject matter meets the contract.The acceptance of the subject matter has a core meaning for the contract,and can produce the following legal effects: the period of the obligation of the payer to pay remuneration,the price risk is transferred to the orderer,and the orderer 's defect objection can be claimed.Due to the imperfect acceptance rules,the plight of the contractor 's right to request remuneration has arisen in practice.Through empirical research,three types of cases are summarized: one is that the orderer is lazy to perform the acceptance obligation,and after using the subject matter without acceptance,he refuses to pay based on no acceptance;second,the fulfillment of the acceptance obligation involves a third party,the ordering person is lazy to perform acceptance and refuses to pay;third,the orderer refuses to receive the object and refuses to pay.For these three types of cases,there is no uniform judgment standard in judicial practice,which is divided into the following two situations: First,the contractor 's request for payment by the ordering party for payment is not supported,although the ordering party is lazy to perform the acceptance obligation or refuses Fulfill the acceptance obligations,but since the two parties agreed that the payment conditions must be qualified for acceptance,the contractor shall not request payment of remuneration if there is no evidence to prove that the acceptance is qualified,which is very unfair to the contractor.The second is to support the contractor 's appeal for the orderer 's remuneration,but after analyzing the reasons for the referee,it can be found that there are many problems.On the one hand,the judge directly makes a fiction of acceptance without rules and regulations to support the request of remuneration in order not to violate the rational and moral principles.This type of case has the highest proportion in the case of supporting the achievement of payment conditions in the final trial;on the other hand,there are also cases where judges use the principles of good faith and trading habits to judge cases,which indirectly illustrates the insufficient supply of rules.In addition,there are cases in which Article 45,paragraph 2,of the Contract Law and Article 159 of the General Provisions of the Civil Law are incorrectly applied.Judges generally regard the payment terms in the contract as wrong conditions for legal actions,and determine that they are artificial Those whose interests improperly prevent conditions are regarded as conditional achievements and support payment conditional achievements,causing the problem of wrong application of the law.The above reflects the serious shortage of the supply of acceptance rules.After exploring the contractor 's other possible remedies,it is concluded that the provisions of the sales contract 's fault liability and the statutory right of cancellation system are not conducive to the complete protection of the contractor 's interests.Drawing on the relevant provisions of the German Civil Code for the proposed acceptance system,and referring to the revelevant provisions of the Chinese construction contract,the rules for the proposed acceptance system are also established in the Chinese contract to protect the interests of the contractor.The two situations of acceptance period and non-contracted acceptance period serve to urge the author to check and accept in time and accelerate the realization of the contractor 's right to request remuneration. |
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