Research On Applicable Restriction On Rule Of Discretionary Rescission Of Contract For Work

Based on the contract for work,the contractor has the obligation to complete the contracted work.The completion of the work is only for the interests of the ordering party.If the ordering party no longer needs to complete the contracted work,the law specially gives the ordering party the right of discretionary rescission.The legal basis of the right lies in the pursuit of freedom value and efficiency value on the premise of limited rationality,so as to realize Pareto efficiency.However,in judicial practice,the rule of discretionary rescission of the contract is often inappropriately applied,which is reflected in three major problems:the unclear distinction between the application of the discretionary rescission rule and the general legal rescission rule,the unclear application conditions of discretionary rescission rule and the improper application of the retroactive effect of contract rescission.Although article 787 of the civil code updates the norms of the right to rescind the contract discretionarily,it is still unable to fully clarify the above problems.The improper application of discretionary rescission rules will impact the contract rescission system and damage the interests of the contractor.Therefore,the application of the rule of discretionary rescission of contract of work should be restricted.Firstly,in order to prevent the improper expansion of the application of the right,the applicable space of the right of discretionary rescission should be restricted.In terms of the applicable boundary between the discretionary rescission rule of the contract of work and the general legal rescission rule,there are differences in the exercise elements and effects between the two.When the law is applied,the court should judge the constituent elements of different rescission rights respectively;In terms of the restrictions on the application of special types of contracts for work,the application of the right of discretionary rescission in manufacturing supply contracts should be based on the specificity of work results.In broad contracts such as construction project contracts,the discretionary rescission rule can only be excluded by the parties’ separate agreement.Secondly,in order to clarify the applicable standards of the rule,the applicable elements should be restricted.In terms of the subject of the right,it is reasonable for the ordering party to unilaterally enjoy the right to rescind the contract discretionarily.In terms of exercise time of the right,it shall be restricted to the time before the completion of the contracted work results.When there is a dispute over whether the work results have been completed,the court shall make a comprehensive judgment based on objective standards in combination with the time point of issuing the acceptance notice and the completion status of the work.In principle,when there is only wind-up work,it is not appropriate to determine that the work results have not been completed,and the discretionary rescission rule should not be applied at this time.At the same time,the parties should be allowed to agree to waive the right or restrict the form and time of exercising the right of rescission.Thirdly,in order to realize the balance of interests after the discretionary rescission,the effect of the application of the rules should be restricted.In terms of the retroactive effect of rescission,although the contract for work is the temporary contract,it is generally not suitable to restore the completed work to the original state.In principle,the retroactive effect of discretionary rescission should be restricted,and the contractor can claim the remuneration of the performed part.In terms of damages,based on the principle of full compensation for the contractor’s losses,the scope of compensation should be restricted to the performance interests of the unperformed part,and restricted by the rules of predictability,derogation and fault offset.