Construction Project Contractor "lay-off Rights" Research

Contractor's suspension of work often occurs in the execution of construction works.However,there are no specific regulations in the current Civil and Commercial Law and laws and regulations concerning administrative management,which results in the following two phenomena in the construction management.One is that contractors often claim contract rights or rights outside contract under the excuse of suspension of work.The other is that contractors could not claim their rights by means stipulated in the contract or in the current laws because they are not under favorable conditions when entering into a contract, therefore they dare not realize their legitimate rights through suspension of work,which results in the disputes arising in the execution of a contract, and being accumulated and unsettled until the stage of arbitration and litigation.So,they miss the best chance of settling disputes,pay high price, and even could not realize the purpose of the contract.The author of this article has been deeply aware of the importance of legal principles and legal relations in the practice of dealing with such contract disputes and legal disputes,therefore,selects it as the main subject of research of this article.Besides the foreword and the conclusion,this article comprises of four chapters.Chapter 1 introduces the concepts of suspension of work, the entitlement to suspend work and the various types and categories of suspension of work,which is prepared for the discussion on contractor's entitlement to suspend work in the next chapter.Chapter 2 analyzes the nature and significance of suspension of work and entitlement to suspend work.In the author's point of view,contractor's suspension of work is of the nature of defense right in the civil law and is characterized by the duality of rights and duties under some circumstances.Endowing contractors the entitlement to suspend work is good for the project payment,relieving the default of payment,improving the smooth construction;and also for guaranteeing the social and public interests, promoting the project management in quality and safety and reducing the illegal acts in the execution of construction.Chapter 3 gives an analysis of the legal basis and legal obstacles of contractor's entitlement to suspend work.The author discloses the legal basis of contractor's entitlement to suspend work from the perspectives of the Contract Law and laws and regulations on construction management,and makes an analysis of the legal loopholes and shortcomings existing in them separately.The legal obstacles which interfere with contractors' exercising their entitlement to suspend work mainly include that(1) there are no stipulations in the Contract Law which clearly provide that contractors enjoy the entitlement to suspend;(2) the system for suspension of performance is not perfect;(3) there should be the combination of the system of priority of construction and the system of entitlement to suspend work;(4) the entitlement to suspend is not attached enough importance to in the related legal interpretation on construction works;(5) there are no stipulations in the laws and regulations on construction administration which provide that contractors are entitled to suspend in order to withstand the administrative illegal acts of the employers;(6) contractors have not been clearly endowed with the entitlement to suspend,and they should shoulder related administrative legal responsibilities,etc.Chapter 4 constructs the system of contractor's entitlement to suspend.Firstly,it introduces the stipulations on contractor's entitlement to suspend in model contracts and laws and regulations overseas.Secondly,it makes a specific clarification on contractor's entitlement to suspend and establishes two main principles of the system of contractor's entitlement to suspend,that is,the principle of honesty and credibility and the principle of reducing loss.The detailed contents of contractor's entitlement to suspend are analyzed from two aspects,that is,suspension of work in accordance with the Contract and in accordance with the law,and the procedure and result of exercising the contractor's entitlement to suspend are given a detailed analysis.At last,a legislative proposal on perfecting contractor's entitlement to suspend work in China is raised.A design on the legislative framework is proposed mainly from the aspects of the Contract Law and its supporting regulations, laws and regulations on construction administration and related separate law of procedure,etc,and the dial-penalty system pertaining to the suspension of work in administrative legislation is put forward.