专业团队

一、合同纠纷的含义

合同纠纷，是指因合同的生效、解释、履行、变更、终止等行为而引起的合同当事人的所有争议。合同纠纷的范围广泛，涵盖了一项合同的从成立到终止的整个过程。具体说来，合同的纠纷有：合同的效力，即合同是否有效之争议;合同文字语言理解不一致之争议;合同是否已按约履行之争议;合同违约责任应当由何方承担及承担多少之争议;合同是否可能单方解除之争议……合同当事人签订合同之后，理想的状态是当事人各自分别按照合同规定之内容完成应履行之义务，直至合同圆满终止。但是、在现实生活中，由于各种各样的原因，既有合同当事人主观的原因，也有情势变迁方面的客观原因。导致合同在签订之后的履行过程中并不是一帆风顺的，往往会出现各种各样的，或大或小的纠纷。没有任何纠纷，合同即履行完毕的情况是不多见的。尤其是在大型合同及涉外合同之中，对于合同纠纷，有些当事人协商加以解决，有些却协商不了，就可能会使一方当事人诉诸仲裁或诉讼，一旦纠纷得不到解决，就会影响合同的正常履行，甚至扰乱社会经济秩序。因此，合同纠纷能够避免则尽量予以避免。所以，应先了解一下合同纠纷的成因。

二、合同纠纷的成因

　　关于合同纠纷的成因，主要有以下两个方面：

(一)主观方面的成因

　　合同是双方当事人协商一致的结果。既然双方当事人在自愿，平等的基础上订立了合同，那么、按合同履行义务应当是毫无疑问的。然而，合同签订后，一方当事人可能会因为种种原因而主观上不想履行或不想完全履行合同。例如，买卖合同中，买方与卖方签了购销钢材的合同之后，合同所确定的钢材价格上涨，卖方见如果仍按合同规定的价格交给买方，就会损失一大笔钱，于是，卖方就想提价，或毁约，或以支付违约金的方式不履行合同。买方则不同意，坚持按事先规定的价格购买，双方遂起纠纷。再如，技术实施许可合同中，技术转让方已经与另一方签订了独家许可合同。但见另外一方又欲高价受让此技术，转让方则又将此技术许可给另外一方使用。独家受许可方获知后、要求转让方赔偿损失.双方之纠纷因此而起。可见，主观点原因往往引起违约行为，再由违约行为导致纠纷的产生。纯粹主观上的原因是少见的，主观上原因背后往往存在着客观原因。

(二)客观方面的成因

　　任何一项合同，从订立到履行完毕，除了即时清结的之外，往往经过一个较长的过程。在合同履行过程中，也会出现一些客观上的原因，导致合同无法按约履行，由此引起纠纷。这里所指的客观方面的成因，指由非合同当事人主观意志所导致的，不得已而为之的因合同履行过程中的变化而引起纠纷的原因。例如，在合同履行过程中发生了不可抗力，致使合同不能全部或部分履行。双方当事人对不可抗力的范围，遭受不可抗力的一方是否采取了措施防止损失扩大，不可抗力是否已导致合同不能履行等问题的看法上不一致，因此而起纠纷。再如，由于双方当事人在订立合同时未考虑周全，致使合同在履行过程中出现诸如履行地点不明确，质量规格不明确等情况，协商不能达成一致时就会引起纠纷。一项合同纠纷，有时由单纯的主观原因或客观原因而引起的，有时则既有主观原因，又有客观原因。合同纠纷、归根到底是与双方当事人订立合同的意图相违背的，除非是一方当事人有意欺骗对方当事人.借纠纷而企图获利。合同在履行，甚 至终止时发生纠纷是在所难免的。重要的是在发生纠纷之后如何能行之有效地去解决纠纷。

三、合同纠纷的特点

　　合同纠纷，从总体上来讲，具有如下之特点：

(一)主体特定

　　合同纠纷的主体特定，是指合同当事人，合同纠纷涉及到第三人的情况也存在，但并不多见，主要是发生在订立合同的双方或多方当事人之间。

　　(二)纠纷内容的多样化

　　合同纠纷的内容涉及到合同本身内容的各个方面，纠纷内容多种多样，几乎每一个与合同有关的方面部会引起纠纷，例如，在订立合同的当事人方面也会有纠纷，合同一方当事人是法人的分支机构，本没有对外签订合同的权利却签订了合同，一旦该方法违约但无力承担债务时，必须、也应当由设立该分支机构的法人来承担责任。如果该法人不愿意，则纠纷就会产生。再如，双方口头协商订立了合同，在履行过程中因对原先协商的某一条款理解不一致，因口头无书面证明，纠纷遂起等等。

(三)属于民事纠纷

　　签订合同的当事人是平等主体的公民、法人或其他组织，合同行为是民事法律行为，因此，合同纠纷从本质上说是一种民事纠纷，民事纠纷应通过民事方式来解决，如协商、调解、仲裁或诉论等。民事方式区别于行政方式和刑事方式，行政方式是通过行政手段来直接干预合同纠纷，这与合同法平等的理念是不符合的，在计划经济时代大量存在的行政干预，目前仍然存在，这是与我国社会主义市场经济的要求相违背的，刑事方式是国家通过刑事手段来解决合同纠纷，合同一旦需要通过刑事方式解决，就不能称之为合同纠纷了。而是刑事案件，当前，利用合同进行诈骗的情况很多，对于此类情况，应以诈骗案处理，而不是一般的合同纠纷。

(四)解决方式多样化

　　合同纠纷的解决方式多样，一般来说，主要有以下四种：

　　1、 协商

　　合同当事人在友好的基础上，通过相互协商解决纠纷，这是最佳的方式。

2、调解

　　合同当事人如果不能协商一致，可以要求有关机构调解如，一方或双方是国有企业的，可以要求上级机关进行调解。上级机关应在平等的基础上分清是非进行调解，而不能进行行政干预。当事人还可以要求合同管理机关、仲裁机构、法庭等进行调解。

　　3 、仲裁

　　合同当事入协商不成，不愿调解的，可根据合同中规定的仲裁条款或双方在纠纷发生后达成的仲裁协议向仲裁机构申请仲裁。

4、诉讼

　　如果合同中没有订立仲裁条款，事后也没有达成仲裁协议，合同当事人可以将合同纠纷起诉到法院，寻求司法解决。+除了上述一般特点之外，有些合同还具有其自愿的特点，如涉外合同纠纷，解决时可能会援引外国法律、而不是中国相关的合同方面的法律。

四、合同纠纷的种类

　　合同纠纷的种类，从不同的角度来看.有不同的划分：

　　(一)无效合同纠纷和有效合同纠纷

　　这是从合同的效力角度来对合同纠纷进行的划分。

1、无效合同纠纷

　　是指因合同的无效而引起的合同当事人之间的争议。如合同无效后，合同当事人因各自返还因合同而取得的财产发生的纠纷，合同无效责任应由何方承担，承担多少之纠纷等等。

　　2 、有效合同纠纷

　　是指在合同生效的前提下，合同当事人因履行合同而发生的争议、包括合同订立后合同当事人对合同内容的解释，合同的履行及违约责任，合同的变更、中止、转让、解除、终止等所发生的一切争议，绝大多数合同纠纷为有效合同纠纷。

　　(二)口头合同纠纷和书面合同纠纷

　　这是从合同的形式角度来对合同进行的划分。

　　1、 口头合同纠纷

　　是指合同当事人因履行口头合同而发生的所有争议。口头合同虽然简便易行，但因为没有书面的证据，所以，一旦发生纠纷是不易获得解决的。口头合同多是即时清洁的合同，一般来说，发生纠纷的情况较少。

2、书面合同纠纷

　　是指合同当事人因履行书面合同而发生的所有争议。现实生活中，绝大多数合同纠纷是书面合同纠纷。这与书面合同应用之广泛分不开的，解决书面合同纠纷的依据是双方当事人签订的书面合同书或确认书，以及双方当事人协商一致的所有与合同有关的来往函件等。故要求合同当事人注意保存所有的与合同有关的书面证据，以便在发生纠纷时可以举证,此外，有时在一项合同履行过程中，既有因书面协议引起的纠纷，也有因口头协议引起的纠纷，口头协议除非有证据证明，否则法律是不承认其效力的。

　　(三)国内合同纠纷和涉外合同纠纷

　　这是从合同是否具有涉外因素来划分合同种类的。

　　l、 国内合同纠纷

　　是指合同当事人因履行国内合同而发生的所有争议，国内合同纠份不具有涉外因素，解决纠纷来说，单纯从程序角度要容易得多。

　　2 、涉外合同纠纷

　　是指合同当事人因履行涉外合同而发生的所有争议。涉外合同纠纷因为具有涉外因素，解决纠纷时要比国内合同困难得多。所谓涉外因素，是指合同主体一方是外国的公民，法人或其他组织，合同法律关系发生在国外，合同标的位于国外等。解决涉外合同。

1、 The meaning of contract disputes

Contract disputes refer to all disputes arising from the effectiveness, interpretation, performance, modification, termination, and other actions of a contract between the parties. The scope of contract disputes is broad, covering the entire process of a contract from establishment to termination. Specifically, disputes over contracts include: disputes over the validity of the contract, i.e. the validity of the contract; Disputes over inconsistent understanding of contract language; Disputes over whether the contract has been fulfilled as agreed; Disputes over who should bear the liability for breach of contract and how much should be borne; The dispute over whether a contract can be unilaterally terminated... After the parties sign the contract, the ideal state is for each party to fulfill their respective obligations according to the provisions of the contract until the contract is successfully terminated. However, in real life, due to various reasons, there are both subjective reasons of the contracting parties and objective reasons related to changes in circumstances. The performance process of the contract after signing is not smooth sailing, often resulting in various disputes, big or small. It is rare for a contract to be fulfilled without any disputes. Especially in large-scale contracts and foreign-related contracts, for contract disputes, some parties negotiate to resolve them, while others cannot, which may lead to one party resorting to arbitration or litigation. Once the dispute is not resolved, it will affect the normal performance of the contract and even disrupt the social and economic order. Therefore, if contract disputes can be avoided, they should be avoided as much as possible. So, we should first understand the causes of contract disputes.

2、 Causes of contract disputes

There are two main causes of contract disputes:

（1） Subjective causes

A contract is the result of mutual agreement between the two parties. Since both parties have entered into a contract on a voluntary and equal basis, there should be no doubt about fulfilling obligations according to the contract. However, after the contract is signed, one party may subjectively refuse to perform or fully perform the contract due to various reasons. For example, in a sales contract, after the buyer and seller sign a contract to purchase and sell steel, the price of the steel determined in the contract increases. If the seller still delivers to the buyer at the price specified in the contract, they will lose a large amount of money. Therefore, the seller wants to raise the price, break the contract, or fail to perform the contract by paying a penalty. The buyer disagreed and insisted on purchasing at the predetermined price, leading to a dispute between the two parties. For example, in the technology implementation license contract, the technology transferor has already signed an exclusive license contract with the other party. But when the other party wishes to acquire this technology at a high price, the transferor licenses the technology to the other party for use. After the exclusive licensee became aware, they requested the transferor to compensate for the losses. This led to a dispute between the two parties. It can be seen that subjective reasons often lead to breach of contract, which in turn leads to disputes. Pure subjective reasons are rare, and objective reasons often exist behind subjective reasons.

（2） Objective causes

Any contract, from its conclusion to its completion, often goes through a long process, except for immediate settlement. During the process of contract performance, there may also be objective reasons that prevent the contract from being fulfilled as agreed, leading to disputes. The objective causes referred to here refer to the reasons for disputes caused by changes in the contract performance process, which are caused by the subjective will of non contracting parties and are unavoidable. For example, force majeure occurs during the performance of the contract, which prevents the full or partial performance of the contract. The two parties have different opinions on the scope of force majeure, whether the party affected by force majeure has taken measures to prevent losses from expanding, and whether force majeure has caused the inability to perform the contract, which has led to a dispute. For example, due to the lack of comprehensive consideration by both parties when entering into the contract, disputes may arise during the performance of the contract, such as unclear performance location and quality specifications. Failure to reach a consensus through negotiation can lead to disputes. A contract dispute, sometimes caused by simple subjective or objective reasons, sometimes with both subjective and objective reasons. A contract dispute ultimately goes against the intention of both parties to enter into a contract, unless one party intentionally deceives the other party and attempts to profit from the dispute. It is inevitable that disputes arise during the performance or even termination of a contract. The important thing is how to effectively resolve disputes after they occur.

3、 Characteristics of Contract Disputes

Overall, contract disputes have the following characteristics:

（1） Subject specific

The specific subject of contract disputes refers to the parties to the contract. Contract disputes involving third parties also exist, but are not common, mainly occurring between the two or more parties to the contract.

（2） Diversification of dispute content

The content of contract disputes involves various aspects of the contract itself, and the dispute content is diverse. Almost every aspect related to the contract will cause disputes. For example, there will also be disputes between the parties to the contract. One party to the contract is a branch of the legal entity, and they do not have the right to sign a contract with others but have signed the contract. Once the method breaches the contract but is unable to bear the debt, they must The responsibility should also be borne by the legal person who established the branch. If the legal entity is unwilling, a dispute will arise. For example, if both parties have verbally negotiated and entered into a contract, disputes may arise during the performance process due to differences in understanding of a previously negotiated clause, or the absence of written proof verbally.

（3） Belongs to civil disputes

The parties to a contract are equal citizens, legal persons, or other organizations, and the contractual act is a civil legal act. Therefore, contract disputes are essentially civil disputes, and civil disputes should be resolved through civil means such as negotiation, mediation, arbitration, or litigation. The civil method is different from the administrative method and the criminal method. The administrative method directly intervenes in contract disputes through administrative means, which is inconsistent with the concept of equality in contract law. In the era of planned economy, a large number of administrative interventions still exist, which goes against the requirements of China's socialist market economy. The criminal method is for the state to resolve contract disputes through criminal means, Once a contract needs to be resolved through criminal means, it cannot be called a contract dispute. But it's a criminal case. Currently, there are many cases of using contracts for fraud, and for such cases, they should be handled as fraud cases rather than general contract disputes.

（4） Diversified solutions

There are various ways to resolve contract disputes, generally speaking, there are four main types:

1. Negotiation

The best way for the contracting parties to resolve disputes is through mutual consultation on a friendly basis.

2. Mediation

If the parties to the contract cannot reach a consensus through consultation, they may request mediation from relevant institutions. For example, if one or both parties are state-owned enterprises, they may request mediation from higher-level authorities. Superior authorities should distinguish right from wrong for mediation on an equal basis, and cannot engage in administrative intervention. The parties may also request mediation from the contract management authority, arbitration institution, court, etc.

3. Arbitration

If the parties to the contract fail to reach an agreement through negotiation and are unwilling to mediate, they may apply for arbitration to an arbitration institution in accordance with the arbitration clauses stipulated in the contract or the arbitration agreement reached by both parties after the dispute arises.

4. Litigation

If there is no arbitration clause in the contract and no arbitration agreement is reached afterwards, the parties to the contract can bring the contract dispute to court and seek judicial resolution+ In addition to the general characteristics mentioned above, some contracts also have their voluntary nature, such as foreign-related contract disputes, which may be resolved by citing foreign laws rather than relevant Chinese contract laws.

4、 Types of Contract Disputes

The types of contract disputes can be classified from different perspectives:

（1） Invalid contract disputes and valid contract disputes

This is the classification of contract disputes from the perspective of contract effectiveness.

1. Disputes over invalid contracts

It refers to disputes between the parties to a contract arising from the invalidity of the contract. If there is a dispute between the parties to the contract arising from the return of the property acquired as a result of the contract after its invalidity, the party responsible for the invalidity of the contract should bear the responsibility, and how much dispute should be borne.

2. Effective contract disputes

It refers to all disputes arising from the performance of the contract by the parties to the contract, including the interpretation of the contract content by the parties after the contract is concluded, the performance and breach of contract responsibilities, and all disputes arising from the modification, suspension, transfer, termination, etc. of the contract, under the premise that the contract takes effect. The vast majority of contract disputes are valid contract disputes.

（2） Oral contract disputes and written contract disputes

This is the division of contracts from the perspective of contract form.

1. Oral contract disputes

It refers to all disputes arising from the performance of an oral contract by the parties to the contract. Although oral contracts are simple and easy to implement, they are difficult to resolve once disputes arise due to the lack of written evidence. Oral contracts are mostly contracts for immediate cleaning, and generally speaking, disputes are less common.

2. Written contract disputes

It refers to all disputes arising from the performance of a written contract by the parties to the contract. In real life, the vast majority of contract disputes are written contract disputes. This is inseparable from the widespread application of written contracts. The basis for resolving disputes in written contracts is the written contract or confirmation signed by both parties, as well as all correspondence related to the contract that both parties have agreed upon. Therefore, it is required that the parties to the contract pay attention to preserving all written evidence related to the contract, so that they can provide evidence in the event of a dispute. In addition, sometimes during the performance of a contract, there are disputes arising from both written and oral agreements. Unless there is evidence to prove, oral agreements are not recognized by law for their validity.

（3） Domestic contract disputes and foreign-related contract disputes

This categorizes contracts based on whether they contain foreign-related factors.

l. Domestic contract disputes

It refers to all disputes arising from the performance of domestic contracts by the contracting parties. The correction of domestic contracts does not involve foreign factors, and resolving disputes is much easier from a procedural perspective.

2. Foreign contract disputes

It refers to all disputes arising from the performance of foreign-related contracts by the parties to the contract. Foreign contract disputes, due to their foreign-related factors, are much more difficult to resolve than domestic contracts. The so-called foreign-related factors refer to the fact that one party to the contract is a foreign citizen, legal person or other organization, the legal relationship of the contract occurs abroad, and the subject matter of the contract is located abroad. Resolve foreign-related cooperation