Source: China judicial document website, Supreme People’s court, civil trial, etc
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editor’s note: Article 26 of the interpretation of the Supreme People’s Court on the application of law in the trial of disputes over construction contract of construction projects stipulates: “if the actual constructor brings a lawsuit with the subcontractor or illegal subcontractor as the defendant, the people’s court shall accept it according to law
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If the actual contractor claims rights with the employer as the defendant, the people’s court may add the subcontractor or illegal subcontractor as the party to the case
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The employer shall only be liable to the actual constructor within the scope of the project price owed
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” There is a legal relationship of labor service between the construction contractor and the employed (team)
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As the personnel employed by the contractor to engage in muddy water service, the team is not the actual constructor in the legal sense mentioned above
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The judgment of the second instance finds that this case does not have the preconditions for applying the provisions of Article 26 of the judicial interpretation mentioned above, and has the corresponding factual basis, which is not a mistake in the application of law
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(team) based on this provision, the employer of the project involved in the case is requested to bear the liability for reimbursement within the scope of the project funds owed, which lacks the corresponding factual basis and legal basis, and is not supported by the judgment of the second instance
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Text: civil ruling of the Supreme People’s Court of the people’s Republic of China (2019) Supreme People’s court No
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5594 retrial applicant (plaintiff of first instance and appellee of second instance): Le Dianping
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Respondent (defendant of first instance and appellant of second instance): Fujian * Hai Construction Co., Ltd
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Address: *
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The respondent (the third party in the first instance and the appellant in the second instance): Huai’an Mingfa Real Estate Development Co., Ltd
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Address: *
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Respondent (defendant in the first instance and appellee in the second instance): Peng * Rui
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The third party in the first instance: Mingfa Group Nanjing Real Estate Development Co., Ltd
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Address: *
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The retrial applicant, Le Dianping, is not satisfied with the higher people’s Court of Fujian Province (2) because of the labor contract dispute with the respondent, Fujian * Hai Construction Co., Ltd
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(hereinafter referred to as * Hai company), Huai’an Mingfa Real Estate Development Co., Ltd
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(hereinafter referred to as Huai’an Mingfa company), Peng * Rui and the third party of the first instance, Mingfa Group Nanjing Real Estate Development Co., Ltd
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(hereinafter referred to as Mingfa Nanjing company) 018) minminzhong No
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792 civil judgment, applying to this court for retrial
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The court formed a collegial panel in accordance with the law for examination
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The case has now been examined and concluded
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Le Dianping applied for retrial, saying that: (1) there was no evidence to prove the basic facts in the judgment of the second instance
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1
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In the second trial, it was wrong to apply the law to change the contractual relationship of construction project into the contractual relationship of labor service
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Although Le Dianping filed the first instance lawsuit in his own name, the actual construction was carried out by Le Dianping and his team
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Article 1 of the agreement signed by Le Dianping and Sihai company also states that the payment is the wages of migrant workers
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There is no doubt that the construction contract relationship between ledianping and Peng Yunrui is formed
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To be more precise, the Construction Subcontract relationship between ledianping and Peng Yunrui is formed
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2
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In addition to illegal subcontracting, in the field of construction engineering, layer upon layer subcontracting is a common phenomenon, which has also been recognized by the law
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In addition to the labor relationship or labor relationship formed between the lowest level contractor and its employees, both the intermediate subcontract and the first subcontract (or general contract) form the construction project subcontract relationship between the subcontractor and the contractor, including the general contract relationship, the special project subcontract relationship, and the labor subcontract relationship
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These legal relations are embodied in Article 29 of the construction law of the people’s Republic of China, Article 5 of the regulations on the management of the qualification of construction enterprises, and item 1 of the general provisions of the standards for the qualification of construction enterprises
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3
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Le Dianping and his team are not legal persons, nor should they be a litigation subject (lack of registration and filing), so it is correct for Le Dianping to bring a lawsuit on behalf of his team as the plaintiff; if the object of the lawsuit only involves Le Dianping, it is a labor dispute, but the object of the lawsuit in this case involves Le Dianping’s team, it should be a construction project subcontract relationship
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4
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The evidence certified by the judgment of the first and second instance proved that the relationship between Le Dianping and Peng Yunrui was a construction contract
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The judgment of the second instance determined that the cause of the case was a labor contract dispute, which was inconsistent with the facts, and also inconsistent with the provisions on the cause of civil cases issued and implemented by the Supreme People’s court
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（2） The judgment of the second instance deviates from the correct direction
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The relevant documents of the State Council and the Ministry of construction emphasize that in the field of engineering construction, if the judicial judgment leads to the lack of protection of migrant workers’ hard-earned money, it is a deviation from the correct direction of governance
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Le Dianping and his team are engaged in construction work, and they are also actual constructors
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Article 26 of the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract disputes of construction projects stipulates that the actual constructors can claim rights from the employer within the scope of unpaid project price
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Le Dianping has the right to claim rights from the employer Huai’an Mingfa company
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In view of the restructuring of Sihai company, if Le Dianping can only ask Peng Yunrui and Sihai company for project funds, his legal rights and interests will not be protected, which is also contrary to the purpose and spirit of the judicial interpretation mentioned above
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As a result, the legitimate rights and interests of migrant workers will be lost and social harmony and stability will be damaged
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To sum up, Le Dianping applied for retrial in accordance with Article 200 (2) and (6) of the Civil Procedure Law of the people’s Republic of China
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After examination, the court held that the focus of the retrial examination of this case was: whether Huaian Mingfa company should bear the payment responsibility for the debts involved in the case within the scope of the outstanding project funds
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Based on the facts that have been found out in this case, * Hai company recognized Peng * Rui as the actual constructor of Huaian Mingfa Commercial Plaza project; Sihai company and Peng Yunrui are internal contractors, and le Dianping is the 1 # 2 # 3 # 6 # muddy water team leader of Huaian Mingfa Commercial Plaza plot C project contracted by Peng Yunrui; and Peng Yunrui signed the Huai’an Mingfa Commercial Plaza contract on January 10, 2017 According to the labor wage payment form of the project, it is confirmed that the “1.2.3.6 internal and external ending wage” of ledianping (team) is 349849.50 yuan, and the “2 # 1-3 layer spot work wage” is 10000 yuan, totaling 359849.50 yuan
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On November 15, 2016, Sihai company (Party A) signed an agreement with ledianping (Party B), which also clearly states that “in view of Peng Yunrui’s failure to perform relevant obligations in accordance with the internal contract” Party A, as the contractor of the project, has reached the following agreement through friendly negotiation on matters such as the internal contractor Peng Yunrui’s arrears of labor service fees to Party B
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As a result, the fact that the legal relationship between Le Dianping and his team and Peng Yunrui is clear
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In this case, Le Dianping also claimed to pay “service fee of 359849.50 yuan and interest”
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In the application for retrial, he also recognized that the arrears were “migrant workers’ wages”
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Therefore, it is not improper to define the cause of the case as a labor contract dispute
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The fact that Peng Yunrui owed ledianping 359849.50 yuan in labor service fee is clear
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Sihai company, as the contractor of the project involved in the case, signed an agreement with ledianping on Peng Yunrui’s arrears of labor service fee
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According to the judgment of the second instance, Sihai company voluntarily assumed the repayment obligation of Peng Yunrui’s arrears of ledianping labor service fee by way of debt addition, which has corresponding reasons
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Article 26 of the interpretation of the Supreme People’s Court on the application of law in the trial of disputes over construction contracts of construction projects stipulates that “if the actual constructor brings a lawsuit with the subcontractor or illegal subcontractor as the defendant, the people’s court shall accept it according to law
.
If the actual contractor claims rights with the employer as the defendant, the people’s court may add the subcontractor or illegal subcontractor as the party to the case
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The employer is only responsible for the actual construction within the scope of the project price owed.
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