However, whether Ping Hui and Zhang Ruyi are the civil subjects of the final actual investment of funds, materials and labor in the construction of the project involved in the case.
However, Ping Hui and Zhang Ruyi applied for retrial and claimed that they applied for retrial in accordance with paragraphs 2 and 6 of paragraph 1, article 200 of the Civil Procedure Law of the people’s Republic of China.
Respondent (defendant of first instance and appellee of second instance): Zhejiang Zhongnan Construction Group Co., Ltd.
Stay.
After examination, the court believes that the reasons for Jingyu company’s application for retrial cannot be established, and now the analysis is as follows: 1.
“Actual constructor” mentioned in paragraph 2 of Article 26 of the interpretation of the Supreme People’s Court on the application of law in the trial of construction contract dispute cases refers to the contractor with invalid construction contract, That is, the contractors, sub contractors and qualified constructors (affiliated constructors) of illegal professional engineering subcontracting and labor operation subcontracting contracts; If the construction project has been subcontracted several times, the actual construction contractor shall be the legal person, unincorporated enterprise, individual partnership, contractor and other civil subjects who finally actually invest funds, materials and labor to carry out the project construction.
(hereinafter referred to as Zhongnan company), China Construction First Bureau (Group) Co., Ltd.
(hereinafter referred to as China Construction First Bureau company), Lanzhou New Area Comprehensive Bonded Zone Development and Construction Co., Ltd.
Residence.
Facts and reasons: first, the basic facts identified in the original judgment are lack of evidence, and the application of law is wrong.
(hereinafter referred to as Bonded Zone Company), He refused to accept the civil judgment of Gansu Higher People’s Court (2019) Gan min Zhong No.
However, the determination of whether the two parties are real labor relations and whether they are actual construction workers is irrelevant” belongs to the error of fact determination and the error of applicable law.
Retrial applicant (plaintiff of first instance and appellant of second instance): Zhang Ruyi, male, born on April 22, 1980, Han nationality, lives in Woyang County, Anhui Province.
（1） In the judgment of the second instance, whether the project cooperation agreement signed by Pinghui and Chuwei is valid or not has nothing to do with the identification of the two actual constructors in this case, and the determination that its effectiveness is not judged belongs to the error of fact identification and the error of application of law.
In the first instance, there is insufficient basis for determining that both parties constitute labor relations, and this court will correct it.
（2） In the judgment of the second instance, “although the contract signed by both parties is called labor contract, 1650 yuan is obviously inconsistent with common sense.
In this regard, the original judgment has found that the project cooperation agreement involved in the case was signed by Dan Pinghui and Chuwei..
However, Ping Hui and Zhang Ruyi claimed that the original judgment did not determine whether the project cooperation agreement involved in the case was valid.
Respondent (defendant of first instance and appellee of second instance): Lanzhou New Area Comprehensive Bonded Zone Development and Construction Co., Ltd.
The court formed a collegial panel according to law to examine the case, and the examination has been concluded.
Legal representative: Wu Jianrong, chairman of the company.
should jointly pay the unpaid project funds and interest is tenable lies in finding out: 1 However, whether there is an invalid construction contract relationship between Ping Hui, Zhang Ruyi and the project contractor Zhongnan company; 2.
（3） The judgment of the second instance found that the party signing the contract with each labor service company and material supplier in the project involved was Zhongnan company, which was an error in fact determination and lack of evidence.
（4） The judgment of the second instance found that without any legal basis, but the bid bond, guarantee fee, design fee and some migrant workers’ wages advanced by Ping Hui and Zhang Ruyi were not the main expenses of the project.
Address: comprehensive service center of Comprehensive Bonded Zone, Lanzhou New Area, Gansu Province * * 304div > legal representative: Tian Jianping, general manager of the company.
Respondent (defendant of the first instance and appellee of the second instance): Chu Wei, male, born on October 12, 1969, Han nationality, lives in Tiexiang, Siping City, Jilin Province.
Respondent (defendant of first instance and appellee of second instance): China Construction First Bureau (Group) Co., Ltd.
However, whether Ping Hui and Zhang Ruyi’s claim that Chu Wei, Zhongnan company and China Construction First Engineering Bureau Co., Ltd.
Jointly entrusted agent ad litem: Zhang Yu, lawyer of Beijing Guangsen law firm.
715 retrial applicant (plaintiff of first instance and appellant of second instance): Dan Pinghui, male, born on September 2, 1977, Han nationality, lives in Duchang County, Jiangxi Province.
02 case document civil} ruling of the Supreme People’s Court of the people’s Republic of China (2020) supreme law minshen No.
The act of advance payment was a construction auxiliary act, which was an error in fact determination and lack of evidence.
Jointly entrusted agent ad litem: Jiang Chaofeng, lawyer of Beijing Guangsen law firm.
Domicile: Xihuan South Road, Fengtai District, Beijing * * / div > legal representative: Luo Shiwei, chairman of the company.
It was an error in the application of law because there was no substantive law for the facts of the case.
The gist of the case: “actual constructor” refers to the contractor with invalid construction contract of construction project, that is, the contractor, sub contractor and qualified constructor (affiliated constructor) of illegal professional engineering subcontracting and labor operation subcontracting contract; If the construction project has been subcontracted several times, the actual construction contractor shall be the legal person, unincorporated enterprise, individual partnership, contractor and other civil subjects who finally actually invest funds, materials and labor to carry out the project construction.
Retrial of the case of dispute between the applicants Dan Pinghui and Zhang Ruyi over the construction contract of construction projects with the respondent Chu Wei, Zhejiang Zhongnan Construction Group Co., Ltd.
2、 The application of law in the judgment of first instance identified in the judgment of second instance was wrong, but it was not explained and corrected in the judgment of second instance.
Address: BINKANG Road, Changhe street, Binjiang District, Hangzhou City, Zhejiang Province * *.
209 and applied to this court for retrial.
It only applied the Civil Procedure Law of the people’s Republic of China and the interpretation of the Supreme People’s Court on the application of the civil procedure law of the people’s Republic of China for procedural issues.
