承揽合同定作人未及时或拒绝验收时承揽人的救济途径——基于(2020)最高法民申2919号案例的分析
Remedies for the Contractor When the Ordering Party Fails to Accept the Work in a Timely Manner or Rejects the Work—An Analysis Based on a Supreme People’s Court 2919 Case (2020)

《民法典》规定了在承揽合同中定作人享有验收的权利，验收既包括定作人的受领，还需定作人做出意思表示认可工作，经定作人验收后承揽人方取得报酬请求权。然而现实纠纷中常见承揽人已完成合理的工作成果而不被认可的情形，其获得报酬的权利便随之不能实现，定作人在该种法律关系中的强势地位，往往导致双方权利义务的失衡。满足一定条件时，虽定作人未作验收，仍产生验收效果的拟制验收制度将有效解决前述矛盾。当前我国尚未有明确的法律依据确定拟制验收制度，但在司法实践和工程实务中已有认可，本文拟从最高法的判例中归纳总结拟制验收的成立要件，为今后类似问题的处理厘清解决思路。
The Civil Code stipulates that the ordering party enjoys the right of acceptance in the work contract, which includes not only the acceptance of the ordering party, but also the indication of recognition of the work. After the ordering party’s acceptance, the contractor acquires the right to claim remuneration. However, it is common for the contractor to complete reasonable work results but not be accepted, and their right to obtain remuneration cannot be attained accordingly. The advantage of the ordering party in this situation often leads to inequity between the two parties. When certain conditions are met, acceptance would be created even if the ordering party has not made an acceptance, and will effectively resolve the contradiction. Currently, there is no clear legal basis for this kind of created acceptance in China, but it has been recognized in judicial practice and engineering practice. This article intends to summarize the constituent elements of created acceptance from a Supreme People’s Court precedents, in order to clarify the solution for similar problems in the future.