Supreme Court: the construction team does not belong to the actual constructor in the legal sense


Editor’s Note: Article 26 of the Interpretation of the Supreme People’s Court on the Application of Law to the Trial of dispute cases concerning construction Contracts of Construction Projects stipulates: “The people’s court shall accept the lawsuit filed by the actual construction contractor against the subcontractor or illegal subcontractor.Where the actual constructor claims rights with the contractor as the defendant, the people’s court may add a subcontractor or illegal subcontractor as a party to the case.The employer shall only be liable to the actual constructor to the extent of the unpaid project price.”Instead of hiring construction contractor (team), department of labor law relations between team hired as the contractor personnel engaged in mud services, not the actual construction of the legal sense, the verdict that this case does not have the premise of the foregoing article 26 of the judicial interpretation provisions shall be applicable, have corresponding basis in fact, do not belong to the legal application error.(The team and team) claimed that the owner of the project involved in the case should bear the liability of payment within the scope of unpaid project payment on the grounds of this provision, which lacked the corresponding factual basis and legal basis, and was not supported by the judgment of the second instance, which was not justified.Text: Civil Ruling of the Supreme People’s Court of the People’s Republic of China (2019) Supreme Court Minshen 5594 Retrial applicant (plaintiff of first instance, appellee of second instance) : Le Xiaoping.The respondent (defendant of first instance and appellant of second instance) : Fujian Sihai Construction Co., LTD.Address: *.Respondent (third party of first instance and appellant of second instance) : Huai ‘an Mingfa Real Estate Development Co., LTD.Address: *.Respondent (defendant of first instance, appellant of second instance) : Peng Murui.Third Party of first Instance: Mingfa Group Nanjing Real Estate Development Co., LTD.Address: *.Retrial applicant le a flat with all the respondent fujian construction co., LTD. (hereinafter referred to as all companies), huaian clearly sends the real estate development co., LTD. (hereinafter referred to as the huaian clearly sends the company), peng a ray and the third party of trial clearly sends the group nanjing real estate development co., LTD. (hereinafter referred to as clearly sends the nanjing company) labor contract dispute case,Refusing to accept the civil judgment No. 792 issued by Fujian Higher People’s Court (2018), we apply for a retrial.The court formed a collegial panel in accordance with the law to review.The case is now closed.Le mou ping application for retrial said :(1) the second trial judgment found that the basic facts lack evidence to prove.1. The judgment of the second instance that the construction contract relationship was changed into labor contract relationship was wrong in the application of law.Although Le filed a first-instance lawsuit in his own name, the actual construction was carried out by Le and his team.Article 1 of the Agreement signed by Le Mou Ping and Sihai Company also indicates that this payment is the wages of migrant workers.There is no doubt between Le Mou Ping and Peng Mou Rui to form a construction project construction contract relationship, to be more precise, le Mou Ping and Peng Mou Rui formed between the construction project construction subcontract relationship.2. In addition to illegal subcontracting, layer upon layer subcontracting is a common phenomenon in the field of construction engineering, and has also been recognized by law.In addition to the bottom of the contractors and their hiring workers to form labor or labor relations, in the middle of the subcontract and the subcontractor for the first time (or contract) are made between the contractor and the formation of construction project subcontract relations, the concrete engineering general contract, special engineering subcontracting contract relationship, the subcontracting contract relationship, etc.These legal relations are reflected in article 29 of the Construction Law of the People’s Republic of China, Article 5 of the Provisions on the Management of Construction Enterprise Qualifications, and Item 1 of the General Provisions of the Construction Enterprise Qualification Standards.3. Le Mouping and his team are not legal persons and should not be a litigation subject (lack of registration and filing), so it is correct for Le Mouping to file a lawsuit on behalf of his team as the plaintiff;If the object of the lawsuit only involves a person, le Mou Ping is a labor dispute, but the object of the lawsuit involves Le Mou Ping’s team, it should be the construction project subcontract relationship.4. The evidence of the first and second instance judgment certification proves that the relationship between Le Mou Ping and Peng Mou Rui is a construction project construction contract. The second instance judgment defines this case as a labor contract dispute, which is inconsistent with the facts and does not accord with the Provisions of civil Case Files issued and implemented by the Supreme People’s Court.(2) The judgment of the second instance deviates from the correct z-rule direction.Relevant documents issued by The State Council and the Ministry of Construction stressed that in the field of project construction, if judicial decisions lead to the guarantee of migrant workers’ hard-earned money, it is a deviation from the correct direction of z-governance.A flat and team work in the construction, also is the actual construction, the case can be applied in the Supreme People’s Court on the trial of construction project construction contract dispute case applicable law question the interpretation of article 26 about actual construction can be owing to the employer of any claim within the scope of which the construction price regulation, le a flat has the right to huaian clearly sends the company claims rights to the developer.In view of the restructuring situation of sihai Company, if Le Mouping can only ask Peng Mourui and Sihai company for project funds, it will inevitably lead to the protection of its legitimate rights and interests, but also contrary to the purpose and spirit of the introduction of the aforementioned judicial interpretation, the result will inevitably lead to the loss of the legitimate rights and interests of migrant workers, and then destroy social harmony and stability.In summary, Le Mou Ping applies for a retrial in accordance with the provisions of item 2 and Item 6 of Article 200 of the Civil Procedure Law of the People’s Republic of China.The court considers that the focus of the retrial of the case is whether Huaian Mingfa Company should assume payment responsibility for the debts involved in the case within the scope of unpaid project payment.Based on the facts of the case has been identified, the four sea company recognized peng Rui affiliated to the construction, Peng Rui is the actual construction of huai ‘an Mingfa commercial square project;Sihai company and Peng Mou Rui is the internal contracting relationship, Le Mou Ping peng Mou Rui contract construction of Huaian Mingfa commercial square C block project in the 1#2#3#6# muddy water team responsible;On January 10, 2017, Peng Mou Rui signed the “Huai ‘an Project Labor Wage Payment Table” confirmed to pay Le Mou Ping (team) “1.2.3.6 internal and external end wages” 349,8949.50 yuan, “2#1-3 floor point wages” 10,000 yuan, a total of 359,8949.50 yuan;On November 15, 2016, the four companies (party a) and the joy of a flat (party b) signed the “agreement”, which is also clearly “given the peng some r not relevant obligations in accordance with the provisions of the internal contract, party a as the project construction unit, now the contractor peng within a red matters such as Labour cost, the default party b reached the following agreement through friendly consultation”.Therefore, le Mou Ping and his team and Peng Mou Rui formed a labor legal relationship between the facts are clear, Le Mou Ping in this case appeals to pay “labor fees 359849.50 yuan and interest”, the application for retrial also recognized the arrears is “migrant workers wages”.Therefore, the second instance judgment determined that the relationship between Le Mou Ping and Peng Mou Rui is not a construction project construction contract, and the case is defined as a labor contract dispute, and without exception.A certain credit default le ping peng (team) labor 359849.50 yuan the facts clearly, all companies involved in the project construction unit, as a case and a joy just a flat peng rui default the foregoing matters such as labor signed the “agreement”, verdict was that all company accordingly, in the form of debt to join volunteering for a certain credit default le ping peng labor obligations,There are corresponding justifications.Article 26 of the Interpretation of the Supreme People’s Court on the Application of The Law to the Trial of Dispute Cases concerning Construction Contracts of Construction Projects stipulates: “If the actual constructor sues the subcontractor or illegal subcontractor as the defendant, the people’s court shall accept the lawsuit according to law.Where the actual constructor claims rights with the contractor as the defendant, the people’s court may add a subcontractor or illegal subcontractor as a party to the case.The employer shall only be liable to the actual constructor to the extent of the unpaid project price.”Given joy a certain level and peng rui between labor legal relationship, le a certain flat (team) as the peng rui hire personnel engaged in mud services, not the actual construction of the legal sense, the verdict that this case does not have the premise of the foregoing article 26 of the judicial interpretation provisions shall be applicable, have corresponding basis in fact, do not belong to the legal application error.Le Mou Ping requested the project owner huai ‘an Mingfa Company to assume the liability of payment within the scope of unpaid project payment on the grounds of this regulation, which lacked the corresponding factual basis and legal basis. The judgment of the second instance was not supported, and it was not justified.In summary, Le Mou Ping’s retrial application does not conform to the provisions of item 2 and Item 6 of Article 200 of the Civil Procedure Law of the People’s Republic of China.In accordance with paragraph 1 of Article 204 of the Civil Procedure Law of the People’s Republic of China and Paragraph 2 of Article 395 of the Interpretation of application of the Supreme People’s Court, the ruling is as follows: Le’s application for retrial is rejected.Judge Jia Qinglin, Judge Yang Chun, Judge Zhang Ying 20 November 19, 1919Judge’s assistant Zhou Chuanzhi, clerk Sheng Jialu

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