建设工程承包商“停工权”问题研究
发布时间：2018-12-08 13:15
【摘要】： 承包商停工是建设工程施工阶段常见的现象,但是现有的民商法和建设行政管理法律法规对此并未作出明确的规定,因此导致了在施工管理过程中的两类现象,一是承包商动辄以停工为由,主张合同或合同之外的权益,二是由于承包商处于承包合同签订过程中的弱势主体地位,无法通过合同约定的手段和现有法律规定来主张权益,而不敢通过停工来实现自身的正当权益,导致将合同履行中的纠纷一直持续积攒到仲裁或诉讼阶段,从而失去处理纠纷的最佳时机,并付出高昂的代价,甚至无法实现合同目的。笔者在处理类似合同纠纷和法律纠纷的工作实践中,深感厘清其中法律原理和法律关系的重要性,并选择其作为本文的主要研究内容。 本文除前言和结论外,共分为四部分,第一部分介绍建设工程停工及停工权的概念,梳理了建设工程停工的各种类型与种类,为下文承包商停工权的论述进行铺垫。第二部分分析了建设工程停工及停工权的性质与意义。笔者认为建设工程承包商停工权具有民事抗辩权属性,在某些情形下具有权利义务双重性的特点。赋予建设工程承包商停工权有利于促进工程款支付,缓解工程款拖欠问题,推动项目施工的顺利进行;有利于保障社会公共利益,促进建设工程的质量与安全管理,减少建设工程活动中的违法行为。第三部分则分析了承包商停工权的法律依据与法律障碍。笔者从合同法及建筑行政法律法规两个视角揭示了承包商停工权的法律依据,并分别分析了其中存在的法律漏洞与不足。承包商行使停工权的法律障碍主要包括有《合同法》未直接承认承包商享有停工权,中止履行制度不完善,工程优先权制度应当与停工权制度相结合,有关建设工程的司法解释对停工权未予以足够重视、建设行政法律法规未赋予承包商停工权以对抗建设单位的行政违法行为、承包商不仅无明确停工权且尚需承担相应行政法律责任等几个方面。第四部分对建设工程承包商停工权制度进行了构建。首先,介绍了国外有关承包商停工权的法律法规规定及示范合同规定。其次,对承包商停工权进行了具体的界定。确立了承包商停工权制度的两大原则——诚实信用原则与减损原则,从依约停工与依法停工两个层面上剖析了承包商停工权的具体内容,并对承包商停工权的行使程序与结果进行了细致的分析。最后,对完善我国建设工程承包商停工权作出了立法建议。从合同法及配套规定、建设行政法律法规、程序法及单行立法等方面作出了立法模式规划,并提出了双罚制的设想。
[Abstract]:Contractor shutdown is a common phenomenon in the construction stage of construction projects, but the existing civil and commercial law and construction administrative laws and regulations have not made a clear provision for this, thus leading to two kinds of phenomena in the process of construction management. One is that the contractor often claims the rights and interests outside the contract on the ground of stoppage, and the other is that because the contractor is in a weak position in the process of signing the contract, he cannot claim his rights and interests through the means agreed in the contract and the existing legal provisions. But they dare not realize their legitimate rights and interests by stopping work, leading to the continuous accumulation of disputes in the performance of the contract until the arbitration or litigation stage, thus losing the best time to deal with the dispute and paying a high price. It is not even possible to achieve the purpose of the contract. In the working practice of dealing with similar contract disputes and legal disputes, the author deeply clarifies the importance of legal principles and legal relations, and selects it as the main research content of this paper. In addition to the preface and conclusion, this paper is divided into four parts. The first part introduces the concept of construction project stoppage and the right to stop construction, combing the various types and types of construction project stoppage, paving the way for the discussion of contractor's right to stop work below. The second part analyzes the nature and significance of construction stoppage and shutdown right. The author thinks that the construction contractor's right to stop work has the attribute of civil defense right, and has the characteristics of dual rights and obligations under some circumstances. Giving the construction contractor the right to stop work is helpful to promote the payment of the project money, alleviate the problem of the arrears of the project payment, and promote the smooth progress of the project construction. It is beneficial to protect the public interests, promote the quality and safety management of construction projects, and reduce the illegal activities in construction projects. The third part analyzes the legal basis and legal obstacles of the contractor's right to stop work. The author reveals the legal basis of the contractor's right to stop work from the two angles of contract law and administrative law of construction, and analyzes the legal loopholes and deficiencies respectively. The legal obstacles to the contractor's exercise of the right to stop work mainly include the fact that the contract Law does not directly recognize the contractor's right to stop work, the system of suspension of performance is not perfect, and the system of project priority should be combined with the system of the right of stoppage. The judicial interpretation of the construction project has not paid enough attention to the right to stop work, and the construction administrative laws and regulations have not given the contractor the right to stop work in order to counter the administrative illegal acts of the construction unit. The contractor not only has no clear right to stop work, but also has to bear the corresponding administrative legal responsibility. The fourth part has carried on the construction to the construction contractor suspension right system. First of all, it introduces the laws and regulations of the contractor's right to stop work and the model contract. Secondly, the contractor's right to stop work is defined. This paper establishes two major principles of the contractor's right to stop working-the principle of good faith and the principle of derogation, and analyzes the concrete contents of the contractor's right to stop work from the two levels of contract termination and lawful suspension. The procedure and result of the contractor's right to stop work are analyzed in detail. At last, the legislative suggestion is made to perfect the construction contractor's right to stop work in our country. From the contract law and its supporting regulations, the construction of administrative laws and regulations, procedural laws and separate legislation and other aspects of the legislative model planning, and put forward the idea of double penalty system.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D922.297
本文编号：2368410
[Abstract]:Contractor shutdown is a common phenomenon in the construction stage of construction projects, but the existing civil and commercial law and construction administrative laws and regulations have not made a clear provision for this, thus leading to two kinds of phenomena in the process of construction management. One is that the contractor often claims the rights and interests outside the contract on the ground of stoppage, and the other is that because the contractor is in a weak position in the process of signing the contract, he cannot claim his rights and interests through the means agreed in the contract and the existing legal provisions. But they dare not realize their legitimate rights and interests by stopping work, leading to the continuous accumulation of disputes in the performance of the contract until the arbitration or litigation stage, thus losing the best time to deal with the dispute and paying a high price. It is not even possible to achieve the purpose of the contract. In the working practice of dealing with similar contract disputes and legal disputes, the author deeply clarifies the importance of legal principles and legal relations, and selects it as the main research content of this paper. In addition to the preface and conclusion, this paper is divided into four parts. The first part introduces the concept of construction project stoppage and the right to stop construction, combing the various types and types of construction project stoppage, paving the way for the discussion of contractor's right to stop work below. The second part analyzes the nature and significance of construction stoppage and shutdown right. The author thinks that the construction contractor's right to stop work has the attribute of civil defense right, and has the characteristics of dual rights and obligations under some circumstances. Giving the construction contractor the right to stop work is helpful to promote the payment of the project money, alleviate the problem of the arrears of the project payment, and promote the smooth progress of the project construction. It is beneficial to protect the public interests, promote the quality and safety management of construction projects, and reduce the illegal activities in construction projects. The third part analyzes the legal basis and legal obstacles of the contractor's right to stop work. The author reveals the legal basis of the contractor's right to stop work from the two angles of contract law and administrative law of construction, and analyzes the legal loopholes and deficiencies respectively. The legal obstacles to the contractor's exercise of the right to stop work mainly include the fact that the contract Law does not directly recognize the contractor's right to stop work, the system of suspension of performance is not perfect, and the system of project priority should be combined with the system of the right of stoppage. The judicial interpretation of the construction project has not paid enough attention to the right to stop work, and the construction administrative laws and regulations have not given the contractor the right to stop work in order to counter the administrative illegal acts of the construction unit. The contractor not only has no clear right to stop work, but also has to bear the corresponding administrative legal responsibility. The fourth part has carried on the construction to the construction contractor suspension right system. First of all, it introduces the laws and regulations of the contractor's right to stop work and the model contract. Secondly, the contractor's right to stop work is defined. This paper establishes two major principles of the contractor's right to stop working-the principle of good faith and the principle of derogation, and analyzes the concrete contents of the contractor's right to stop work from the two levels of contract termination and lawful suspension. The procedure and result of the contractor's right to stop work are analyzed in detail. At last, the legislative suggestion is made to perfect the construction contractor's right to stop work in our country. From the contract law and its supporting regulations, the construction of administrative laws and regulations, procedural laws and separate legislation and other aspects of the legislative model planning, and put forward the idea of double penalty system.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D922.297
【引证文献】
相关硕士学位论文 前2条
1 杨丽梅;完善建设工程付款保障制度的思考[D];中国政法大学;2011年
2 覃卓君;建设工程承包人停工权研究[D];广西大学;2011年
，本文编号：2368410
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