As a result, the legitimate rights and interests of migrant workers will inevitably suffer losses, thus undermining social harmony and stability.
There is no doubt that the construction contract relationship between Le Mouping and Peng mourui is formed.
Although Le Mouping filed a lawsuit of first instance in his own name, the actual construction was carried out by Le Mouping and his team.
Respondent (Third Party of first instance and appellant of second instance): Huai’an Mingfa Real Estate Development Co., Ltd.
The judgment of the second instance found that the case does not meet the preconditions for the application of Article 26 of the above judicial interpretation, has corresponding factual basis, and is not an error in the application of law（ (2) the employer of the project involved in the request case shall bear the liability for repayment within the scope of unpaid project funds on the grounds of this provision, which is lack of corresponding factual basis and legal basis, and the judgment of the second instance is not supported, which is not improper.
Le Mouping is the leader of the 1#2#3#6# muddy water team in the plot C project of Huai’an Mingfa Commercial Plaza contracted by Peng mourui; In the manual wage payment table of Huai’an project signed by Peng mourui on January 10, 2017, it is confirmed that the “1.2.3.6 internal and external closing salary” payable to le Mouping (team) “is 349849.50 yuan, and the” 2#1-3 floor point work salary “is 10000 yuan, totaling 359849.50 yuan; On November 15, 2016, Sihai company (Party A) and Le Mouping (Party B) signed the agreement, which also made it clear that “in view of Peng mourui’s failure to perform relevant obligations in accordance with the internal contract, Party A, as the contractor of the project, now reaches the following agreement through friendly negotiation on the matters such as the arrears of labor expenses of internal contractor Peng mourui to Party B”.
As the personnel employed by the contractor to engage in mud and water labor, the team is not the actual constructor in the above legal sense.
Based on the facts identified in this case, Sihai company recognizes that Peng mourui is affiliated with it for construction, and Peng mourui is the actual constructor of Huai’an Mingfa Commercial Plaza project; Sihai company has an internal contracting relationship with Peng mourui.
The evidence certified by the judgment of the first and second instance proves that Le Mouping and Peng mourui have a construction contract relationship.
Domicile: *.
792 of Fujian Higher People’s court and applied to this court for retrial.
(hereinafter referred to as Sihai company), Huai’an Mingfa Real Estate Development Co., Ltd.
After examination, the court believes that the focus of the retrial examination of this case is whether Huai’an Mingfa company should bear the payment responsibility for the debts involved in the case within the scope of the unpaid project funds.
Text: civil ruling of the Supreme People’s Court of the people’s Republic of China (2019) supreme law min Shen No.
Article 1 of the agreement signed by Le Mouping and Sihai company also states that this payment is the salary of migrant workers.
More specifically, the Construction Subcontract relationship between Le Mouping and Peng mourui is formed.
In view of the reorganization of Sihai company, if Le Mouping can only ask for project funds from Peng mourui and Sihai company, its legitimate rights and interests will not be protected, which is also contrary to the purpose and spirit of the above judicial interpretation.
Therefore, the judgment of the second instance found that there was no construction contract relationship between Le Mouping and Peng mourui, and it was not improper to classify the cause of this case as a labor contract dispute.
In addition to the labor relationship or labor relationship formed between the lowest contractor and its employees, the intermediate subcontracting and the first subcontracting (or general contracting) form a construction project subcontract relationship between the subcontractor and the contractor, including general contracting contract relationship, special project subcontract relationship, labor subcontract relationship, etc.
(hereinafter referred to as Huai’an Mingfa company), Peng mourui and the third party Mingfa Group Nanjing Real Estate Development Co., Ltd.
2.
Click here to get a complete set of preparation template of safety data free of charge.
Le Mouping and his team are engaged in construction work and are also actual constructors.
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 the law.
In conclusion, Le Mouping applied for retrial in accordance with items 2 and 6 of article 200 of the Civil Procedure Law of the people’s Republic of China.
The second instance judgment changed the construction contract relationship of the construction project into the labor contract relationship, and the applicable law was wrong.
3.
In the retrial of the labor contract dispute between the applicant Le Mouping and the respondent Fujian Sihai Construction Co., Ltd.
Le Mouping and his team are not legal persons and should not be a subject of litigation (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 subject matter of the lawsuit only involves Le Mouping, it is a labor dispute, but the subject matter of the lawsuit in this case involves Le Mouping team, it should be the construction project subcontract relationship.
According to the judgment of the second instance, Sihai company was determined to voluntarily undertake the payment obligation of Peng mourui’s arrears of Le Mouping’s labor fees by way of debt accession, which has corresponding grounds《 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: “if the actual construction contractor brings a lawsuit against a subcontractor or illegal subcontractor, the people’s court shall accept it according to law.
Domicile: *.
Le Mouping also claimed to pay “labor fee of 359849.50 yuan and interest” in this case, and it was also recognized that the arrears were “migrant workers’ wages” in the application for retrial.
The third party in the first instance: Mingfa Group Nanjing Real Estate Development Co., Ltd.
Domicile: *.
The employer shall be liable to the actual constructor only within the scope of unpaid project price..
If the actual construction contractor claims rights with the employer as the defendant, the people’s court may add a subcontractor or illegal subcontractor as the party to the case.
As the contractor of the project involved in the case, Sihai company signed an agreement with Le Mouping on Peng mourui’s arrears of the above labor fees.
Therefore, the fact that Le Mouping and his team have formed a labor legal relationship with Peng mourui is clear.
4.
Peng mourui owed Le Mouping (team) 359849.50 yuan of labor fees.
The judgment of the second instance determines the cause of the case as a labor contract dispute, which is inconsistent with the facts and the provisions on the causes of civil cases issued and implemented by the Supreme People’s court（ 2） The judgment of the second instance deviated from the correct direction.
The fact is clear.
Le Mouping applied for retrial and said: (1) the judgment of the second instance found that the basic facts were lack of evidence.
(hereinafter referred to as Mingfa Nanjing company) in the first instance, He refused to accept the civil judgment (2018) Min Min Zhong No.
Respondent (defendant of first instance and appellee of second instance): Peng mourui.
These legal relations are embodied in Article 29 of the construction law of the people’s Republic of China, Article 5 of the provisions on the administration of the qualification of construction enterprises, item 1 of the general provisions of the qualification standards of construction enterprises, etc.
If the actual construction contractor claims rights with the employer as the defendant, the people’s court may add a subcontractor or illegal subcontractor as the party to the case.
” There is a labor legal relationship between the construction contractor and the (team) employed by the contractor.
In this case, the provisions of 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 that the actual constructors can claim their rights from the employer within the scope of the unpaid project price can be applied, Le Mouping has the right to claim rights from the employer Huai’an Mingfa company.
1.
The relevant documents of the State Council and the Ministry of construction emphasize that in the field of engineering construction, if the hard-earned money of migrant workers is not guaranteed by judicial judgment, it is a deviation from the correct direction of governance.
5594 retrial applicant (plaintiff of first instance and appellee of second instance): Le Mouping.
Editor’s note: Article 26 of the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract dispute cases of construction projects stipulates: “if the actual construction contractor sues with the subcontractor and illegal subcontractor as the defendant, the people’s court shall accept it according to law.
The employer shall be liable to the actual constructor only within the scope of the unpaid project price.
The court formed a collegial panel for examination according to law.
Respondent (defendant of first instance and appellant of second instance): Fujian Sihai Construction Co., Ltd.
The case has now been examined and concluded.
