Gist of judgment According to Article 26 of the judicial interpretation of construction contract, “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
.
The employer shall only be liable to the actual constructor within the scope of the project price owed
.
” There is a labor legal relationship between the construction contractor and the migrant workers (teams) employed by the contractor
.
As the workers employed by the contractor to engage in construction services, migrant workers (teams) are not the “actual constructors” in the above legal sense, so they do not have the preconditions to apply the provisions of Article 26 of the above judicial interpretation, Migrant workers (teams) ask the employer of the project to bear the responsibility of repayment within the scope of the unpaid project funds on the basis of this provision, which lacks the factual basis and legal basis
.
Civil ruling of the Supreme People’s Court of the people’s Republic of China (2019) sfmmshen No
.
5594 Retrial applicant (plaintiff of first instance and appellee of second instance): Le Dianping
.
Respondent (defendant in the first instance and appellant in the second instance): Fujian Sihai Construction Co., Ltd
.
Address: 4f, 169 Tapu East Road, Siming District, Xiamen City, Fujian Province
.
Legal representative: Song Yongjin, chairman of the board of the company
.
The respondent (the third party in the first instance and the appellant in the second instance): Huai’an Mingfa Real Estate Development Co., Ltd
.
Address: room 603, 8 Yingbin Avenue, Huaian Economic and Technological Development Zone, Jiangsu Province
.
Legal representative: Huang Huanming, chairman of the board of the company
.
Respondent (defendant of first instance and appellee of second instance): Peng Yunrui
.
The third party in the first instance: Mingfa Group Nanjing Real Estate Development Co., Ltd
.
Address: No.1 Binjiang Avenue, Pukou District, Nanjing City, Jiangsu Province
.
Legal representative: Huang Huanming, general manager of the company
.
The retrial applicant Le Dianping is involved in a labor contract dispute with the respondent Fujian Sihai Construction Co., Ltd
.
(hereinafter referred to as Sihai company), Huai’an Mingfa Real Estate Development Co., Ltd
.
(hereinafter referred to as Huai’an Mingfa company), Peng Yunrui and the third party of the first instance, Mingfa Group Nanjing real estate Development Co., Ltd
.
(hereinafter referred to as Mingfa Nanjing company), He refused to accept the (2018) minminzhong No
.
792 civil judgment of Fujian Higher People’s court and applied to this court for retrial
.
The court formed a collegial panel in accordance with the law for examination
.
The case has now been examined and concluded
.
Le Dianping applied for retrial, saying that: (1) there was no evidence to prove the basic facts in the judgment of the second instance
.
1
.
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
.
Although Le Dianping filed the first instance lawsuit in his own name, the actual construction was carried out by Le Dianping and his team
.
The contract signed by Le Dianping and Sihai company 《 Article 1 of the agreement also states that this payment is the wages of migrant workers
.
There is no doubt that the construction contract relationship between ledianping and Peng Yunrui is formed
.
To be more precise, the Construction Subcontract relationship between ledianping and Peng Yunrui is formed
.
2
.
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
.
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
.
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
.
3
.
Le Dianping and his team are not legal persons, nor should they be the subject of litigation (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 one person of Le Dianping, it is a labor dispute, but the object of the lawsuit in this case involves the team of Le Dianping, it should be the construction project subcontract relationship
.
4
.
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
.
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（ 2） The judgment of the second instance deviated from the correct political direction
.
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 political direction
.
Le Dianping and his team are engaged in construction work, and they are also actual constructors
.
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 the actual constructors can claim rights from the employer within the scope of the unpaid project price, Le Dianping has the right to claim the right from the employer Huai’an Mingfa company
.
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
.
As a result, the legitimate rights and interests of migrant workers will be lost and social harmony and stability will be damaged
.
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
.
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
.
Based on the facts that have been found out in this case, Sihai company recognized Peng Yunrui as the actual constructor of Huaian Mingfa Commercial Plaza project; Sihai company and Peng Yunrui have an internal contract relationship
.
Le Dianping is the leader of 1 ා 2 ා 3 ා 6 # muddy water team in Huaian Mingfa Commercial Plaza plot C project contracted by Peng Yunrui; On January 10, 2017, Peng Yunrui signed the labor wage payment form of Huai’an project, which confirmed that the “1.2.3.6 internal and external ending salary” of ledianping (team) was 349849.50 yuan, and the “2 # 1-3 layer spot work salary” was 10000 yuan, totaling 359849.50 yuan; On November 15, 2016, Sihai company (Party A) and le Dianping (Party B) signed the agreement, which also made it clear that “in view of Peng Yunrui’s failure to perform the 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 matters such as Peng Yunrui’s default on Party B’s labor costs.”
.
As a result, the fact that the legal relationship between Le Dianping and his team and Peng Yunrui is clear
.
In this case, Le Dianping also claimed to pay “service fee of 359849.50 yuan and interest”
.
In the application for retrial, he also recognized that the arrears were “migrant workers’ wages”
.
Therefore, it is not improper to define the cause of the case as a labor contract dispute
.
The fact that Peng Yunrui owed ledianping 359849.50 yuan in labor service fee is clear
.
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
.
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
.
《 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.
.
