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We are a special “product” under special historical conditions
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China’s law has not given the Contractor a clear legal status
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In the field of construction, the contractor has a long history
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As early as more than 10 years ago, the former Ministry of Construction issued a document proposing to gradually abolish the contract labor in the field of construction labor within three years, and migrant workers will be directly absorbed by labor service enterprises or other employment enterprises with legal personality
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In 2019, the Ministry of housing and urban rural development and the Ministry of human resources and social security issued and implemented the “management measures for real name system of construction workers (Trial)”, which clearly states that construction enterprises shall not employ unregistered construction workers
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In this way, the employment form of contractor is eliminated
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However, in reality, the contractor still exists in some construction
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On May 5, 2020, the workers’ daily published an article “whose workers are the contractors”: in the construction field, the contractors contracted labor projects and took a group of workers to work together
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If they were injured in the construction, could the contractors ask for compensation from the contractor and the employer? Urumqi intermediate people’s court finally ruled that there is no labor relationship between the contractor and the employer, and the contractor is neither the Contractor’s worker nor the employer’s worker, and can not claim compensation
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In the field of construction, who is the contractor and how to protect his rights and interests have become a very important legal issue
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In the trial practice, the actual constructors include the contractors, but according to the legal restrictive conditions, the actual constructors can not cover the contractors
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Therefore, there is another legal issue: if the employees of the contractor are damaged in the construction, whether the contractor should be liable for compensation, and whether the subcontractor and the illegal subcontractor should bear joint liability
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In practice, the referee’s views are inconsistent
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Share two final judgments in a series of cases
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(1) case 1: dispute over the right of recourse between Fujian Shangcheng Construction Group Co., Ltd
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and Huai’an Tianhong construction services Co., Ltd
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[Jiangsu Huai’an intermediate people’s Court (2018) no.1700 civil judgment of Su 08 min Zhong] case 2: dispute over the right of recourse between Fujian Shangcheng Construction Group Co., Ltd., Zheng Zhiwei and Zhang Qianlong, Guangcheng (Huai’an) Real Estate Development Co., Ltd Civil judgment of the second instance on the dispute of liability for damages [Jiangsu Huai’an intermediate people’s Court (2019) Su 08 min Zhong No
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4078] [summary of case 1] Fujian Shangcheng Construction Group Co., Ltd
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is the general contractor of the project of “Huai’an Guangcheng Shangshu house phase II” developed by Guangcheng (Huai’an) Real Estate Development Co., Ltd
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Shangcheng company contracted all tile work of 19-22 building, civil air defense and underground garage project to Chen Guangquan
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Chen Guangquan sub contracted painting, floor and other auxiliary works of 20 building to Jun Xusheng
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Jun Xusheng handed over floor cleaning work of 1-10 floors of 20 building to Xu
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Contract to Tianhong construction services Co., Ltd
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for the scaffold and steel pipe fastener of supporting system of 15 # – 17 #, 19 # – 22 #, underground garage and civil air defense project of Central Plaza project
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(1) Xu accidentally fell from the stairway hole to the 7th floor when cleaning up the garbage on the 8th floor of the 20th floor
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In the lawsuit, Shangcheng company applied to add Tianhong company as the defendant, but the court of first instance and the court of second instance did not allow it
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In this case, Jun Xusheng, as the employer, compensated Xu a total of 1073493.64 yuan for various losses, and Shangcheng company and Chen Guangquan were jointly and severally liable
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(2) Shangcheng company thinks that Tianhong company failed to fulfill the safety protection obligations stipulated in the contract, resulting in Xu’s injury, so it should bear the contract responsibility and file a claim lawsuit
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The court of first instance held that although this case was a claim made by Shangcheng company after assuming joint and several liability on behalf of Jun Xusheng, Shangcheng company claimed compensation according to the scaffold contract agreement with Tianhong company, and the two parties belonged to labor subcontract
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Tianhong company is to provide safety protection facilities for Shangcheng company
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Tianhong company is responsible for the safety protection of the whole construction site, but it is only responsible for its own contractual obligations
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According to the degree of fault of both parties, Tianhong company shall bear 30% of the compensation liability for the loss of Shangcheng company
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The court of second instance held that: the main issues of dispute between the two parties in this case are whether Tianhong company has fault liability in the process of performing the scaffold contract and how to bear the responsibility for the compensation of Xu, an outsider of Shangcheng company
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Tianhong company failed to find that the protective measures were removed in time, and there was fault behavior
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However, as the general contractor of the project involved, Shangcheng company, according to the requirements of construction specifications, equipped with safety officers, should be responsible for the safety work of the project
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In the construction process, the construction team should find the protective facilities removed at the first time and inform Tianhong company to repair
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The court of first instance compared the fault of both parties in the case of Xu’s compensation for damages, and held that Shangcheng company should bear the main liability for compensation, and decided that Tianhong company should bear 30% of the compensation paid by Shangcheng company to Xu
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(3) [summary of case 2] Guangcheng (Huai’an) Real Estate Development Co., Ltd
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contracted Fujian Shangcheng Construction Group Co., Ltd
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to develop “Huaian Guangcheng Shangshu house phase III” (No
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23-26, No
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29-32, No
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14, No
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18 and No
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28) civil engineering, hydropower and pile foundation projects
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Shangcheng company will subcontract the works of No.14, No.18, No.28 dry hanging and No.29 building (29 / s-29 / Y-axis) to Zheng Zhiwei by way of contract clearing
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Zhang Qianlong, one of Zheng Zhiwei’s employees, fell off the scaffold and was injured
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The court of first instance ordered Zheng Zhiwei to compensate Zhang Qianlong for various losses totaling 204337.89 yuan, and Shangcheng company shall be jointly and severally liable for the above amount
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The court of second instance held that Shangcheng company should bear the responsibility for Zhang Qianlong’s damage and what kind of responsibility it should bear
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The second paragraph of Article 11 of the interpretation of the Supreme People’s Court on Several Issues concerning the application of law in the trial of personal injury compensation cases stipulates that if an employee suffers personal injury due to work safety accidents in employment activities, and the employer and the subcontractor know or should know that the employer who accepts the contract or the subcontract business does not have the corresponding qualifications or production safety conditions, they should bear the responsibility with the employer With compensation liability
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In this case, Shangcheng company subcontracted part of the engineering labor it undertook to Zheng Zhiwei, who was not qualified for construction, and they should bear joint and several liability with Zheng Zhiwei for Zhang Qianlong’s damage
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[comment and analysis] in the two cases, the scope of the compensation subject of the Contractor’s employees in the construction is easy to understand and has application value
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If the employees of the actual constructors are damaged in the construction, the actual constructors should bear the compensation liability, and the subcontractors and illegal subcontractors should bear joint and several liability
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