Recommended reading: 1
.
The Supreme People’s court’s reply: how to identify the “actual constructor” in the construction contract disputes of construction projects 2
.
Supreme law: migrant workers (teams) do not belong to the actual constructor in the legal sense, and have no right to directly require the employer to pay for labor services [gist of judgment] according to the second part of the “interpretation of the Supreme People’s Court on the application of law in the trial of construction contract disputes of construction projects” According to Article 26, the actual constructor can break through the relativity of the contract and investigate the legal responsibility of the employer
.
However, the “actual contractor” in the construction project refers to the contractor who actually completes the construction project in the invalid construction contract, that is, the actual Contractor under the circumstances of illegal subcontracting, illegal subcontracting and borrowing qualification
.
Text: civil ruling of the Supreme People’s Court of the people’s Republic of China (2018) Supreme People’s court No
.
5741 retrial applicant (plaintiff of the first instance and appellant of the second instance): Ou Shibin, male, born on January 5, 1974, Han nationality, living in Cangxi County, Sichuan Province
.
Entrusted agent ad litem: he Xingquan, a lawyer of Sichuan Shujian law firm
.
The retrial applicant (the third person in the first instance and the appellant in the second instance): Peng Youming, male, born on May 24, 1969, Han nationality, living in Wutongqiao District, Leshan City, Sichuan Province
.
Agent ad litem: Xu Dingzhu, lawyer of Sichuan Qili law firm
.
Respondent (defendant in the first instance and appellee in the second instance): the sixth construction and installation engineering company of Xinjiang production and Construction Corps
.
Address: building 78, 34 community, Tianshan Road, Shihezi City, Xinjiang Uygur Autonomous Region
.
Legal representative: Chai Junling, general manager of the company
.
Respondent (defendant in the first instance and appellee in the second instance): Sichuan Tongda Construction Co., Ltd
.
Address: No.18, 6th floor, unit 1, building 1, No.19, West Third Section of the Second Ring Road, Jinniu District, Chengdu City, Sichuan Province
.
Legal representative: Zhang Xiaoping, general manager of the company
.
Respondent (defendant in the first instance and appellee in the second instance): Chongqing Changshou overseas Chinese Construction Co., Ltd
.
Address: No.11, Chuangye street, huangjuewan, Fengcheng street, Changshou District, Chongqing
.
Legal representative: Li Xiaoming, executive director of the company
.
Entrusted agent ad litem: Zhou Shaolu, lawyer of Chongqing Jinlei law firm
.
The defendant in the first instance: Shihezi Runtian labor dispatch Co., Ltd
.
Address: No.190, community 42, Beier Road, Shihezi City, Xinjiang Uygur Autonomous Region
.
Legal representative: Li Yonghua, chairman of the board of the company
.
The retrial applicant Ou Shibin and Peng Youming, together with the respondent Xinjiang production and Construction Corps Sixth Construction and installation engineering company (hereinafter referred to as Corps Sixth Construction), Sichuan Tongda Construction Co., Ltd
.
(hereinafter referred to as Tongda company), Chongqing Changshou overseas Chinese Musen Construction Co., Ltd
.
(hereinafter referred to as Musen company) and the defendant Shihezi Runtian labor dispatch Co., Ltd
.
(hereinafter referred to as Tongda company) In the case of labor contract dispute, the higher people’s Court of Xinjiang Uygur Autonomous Region (2017) xinminzhong No
.
546 applied to this court for retrial
.
A collegial panel was formed in accordance with the law to examine the case, which has been concluded
.
Ou Shibin applied for retrial, saying that (1) the judgment of the first and second instance was wrong
.
1
.
The sixth construction of BINGTUAN and Tongda company are illegal subcontracting relationship, which is wrongly identified as legal subcontracting relationship in the first and second instance judgments
.
2
.
The judgment of the first and second instance found that there was a factual labor relationship error between Ou Shibin and Peng Youming
.
Xia Xialin and Peng Youming were successively authorized by Tongda company to be responsible for the construction of the project involved in the case
.
Xia Xialin quit midway after settling accounts with Ou Shibin, and then Peng Youming took over
.
This is a change in the internal personnel of Tongda company
.
It should be recognized that Tongda company actually performs the contract with BINGTUAN Liujian
.
3
.
Ou Shibin once provided a “project cooperation agreement” signed between Zhengyuan company and Musen company
.
In the contract, the seal of Zhengyuan company and the signature of project manager of BINGTUAN No.6 construction company are true
.
The first and second trials will not determine the error
.
4
.
The service fee owed in this case should be 1.46 million yuan, and the judgment of the first and second instance was found to be 1089704.8 yuan
.
（2） The application of law in the judgment of the first and second instance is wrong
.
In this case, BINGTUAN No.6 construction company and Tongda company are illegal subcontracting relationship, Tongda company and Xia Xialin, Peng Youming are also illegal subcontracting or affiliation relationship, Ou Shibin is the actual construction person, he has no fault for the invalid contract, so he has the right to according to the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract dispute cases (FA Shi [2004] 14) Article 26 breaks through the relativity of contract and requires BINGTUAN Liujian and Musen company to bear joint and several liability
.
Ou Shibin applied for retrial in accordance with Item 2 and item 6 of article 200 of the Civil Procedure Law of the people’s Republic of China
.
Peng Youming applied for retrial, claiming that (1) the judgment of the first and second instance was wrong in finding the facts
.
1
.
The judgment of the first and second instance found that the official seal of the company was forged, and ruled out the responsibility error of the company
.
Whether the official seals are consistent or not should be subject to judicial appraisal; in practice, there are more than two official seals in one company; the court of first and second instance did not verify the authenticity of the copy of the “engineering cooperation agreement” signed on March 15, 2012 between Zhengyuan company and Musen company, Affiliated to BINGTUAN sixth construction company, submitted by Ou Shibin
.
In addition, if the official seal of Musen company is forged, the labor contract shall be invalid, and the contract can not bind both parties, then the judgment of the first and second instance finds that Peng Youming is wrongly responsible
.
2
.
The judgment of the first and second instance used two forged statements of account as evidence, which proved that the facts were wrong
.
Peng Youming claimed in the lawsuit that the “settlement statement” was forged and required cross examination, but the court did not permit it; the “settlement statement” was made unilaterally by Ou Shibin, and signed by Pan bin, the nominal project manager of Zhengyuan company affiliated to BINGTUAN sixth construction, and Xia Xialin, who quit the project contracting in 2013, on June 18 and June 20, 2014, respectively, and all parties did not settle at the same time, without settlement voucher and attachment I don’t know and approve the statement, and I haven’t signed the statement, so I’m not bound by the statement
.
3
.
The letter of commitment signed and approved by Peng Youming on July 3, 2014 was issued to BINGTUAN Liujian on behalf of Tongda company, not to Ou Shibin
.
4
.
Peng Youming did not attend the meeting, and the minutes of meeting on May 27, 2014 could not bind the applicant
.
5
.
The judgment of the first and the second trial found that the total amount of service fee and the amount of service fee owed were wrong according to the minutes of meeting and the statement of settlement
.
Peng Youming didn’t know the minutes of the meeting and the statement of settlement, and didn’t sign them; the first and second trial decisions ignored Peng Youming, the person in charge of the project construction, to calculate the total amount of labor cost provided and a large number of documentary errors from BINGTUAN Liujian and Shihezi Luxing construction service company (hereinafter referred to as Luxing company) to prove that Ou Shibin had over received money
.
6
.
There was a mistake in the first and second judgments that the corresponding project funds were not deducted
.
The construction of outdoor apron and step has been completed by others on behalf of Ou Shibin
.
The construction cost is 30000 yuan and the compensation for fire at Ou Shibin’s construction site is 86000 yuan, which is supported by the investigation record and receipt of the labor bureau
.
A total of 116000 yuan of the two items should be deducted from Ou Shibin’s project payment
.
（2） The application of law in the judgment of the first and second instance is wrong
.
1
.
The cause of this case is the dispute of construction contract, not the dispute of labor contract
.
The project involved in the case was illegally subcontracted to Tongda company by Zhengyuan company affiliated to BINGTUAN sixth construction company; Tongda company authorized Xia Xialin and Peng Youming as project site leaders, representing Tongda company to carry out specific construction until the completion of the project; Xia Xialin later subcontracted part of the project labor to Ou Shibin on behalf of Musen company, and Xia Xialin withdrew from the project; BINGTUAN sixth construction company also subcontracted part of the project labor to Ou Shibin Lu Xing company and Ou Shibin’s service fees are paid by BINGTUAN Liujian, Lu Xing company and Peng Youming respectively.
.
