(2019) Qing 2822 min Chu No.
Key points of judgment: the focus of the dispute in this case: does Dadu company and Li Shengli bear joint and several liability for the arrears of project funds? The court held that: the plaintiff fulfilled the project construction obligations agreed in the agreement, the project was completed and accepted, and Li Shengli, the person in charge of Anxin company, settled with the plaintiff.
4、 Later, because Anxin company had not paid the remaining project funds to Li Minli, Li Minli brought a lawsuit to the court with Zhejiang Tiancheng company, Dadu company and Li Shengli as defendants.
In the process of contract performance, most companies do not enjoy substantive contract rights and obligations, nor participate in the performance of specific terms of the contract, and do not have the qualification of contract subject at the factual level.
In this case, the subjects of the contract are Zhejiang Tiancheng company and Anxin company.
The undertaking of liability must be expressly stipulated by law or agreed by the parties.
In order to contract the construction of a project, he is affiliated with Zhejiang Tiancheng company with construction qualification.
In this project, most companies have paid industrial injury insurance for construction workers.
It can not be confirmed that most companies are the opposite party of the contract and bear the liability for compensation only by stamping the official seal on the industrial injury insurance form.
It can not be proved that there is a subordinate or related relationship between Dadu company and Anxin company.
Only the official seal of Dadu company stamped on the industrial injury insurance form can not prove that Dadu company is the opposite party of the contract.
3、 On August 26, 2014, after settlement between Li Minli and Li Shengli after the completion of the project, Li Shengli confirmed that the project payment payable to the plaintiff was 794260 yuan.
The third party makes a “unilateral promise” to the creditor It means that it is jointly and severally liable for the debts of the debtor, and the consent of the creditor is not required at this time (because the coexistence of debt undertaking will not have an adverse impact on the creditor) In this case, most companies stamped the official seal on the industrial injury insurance form, but they denied liability, and there was no other evidence to prove that they joined the relationship between Anxin company and the plaintiff’s debt, and they were jointly and severally liable to the plaintiff together with Anxin company.
disputes over construction contracts between Anxin jielihe Copper Co., Ltd.
He once interned in the people’s court.
In the project details, only Li Shengli signs without Dadu company’s seal.
His business expertise is: Company consulting, contract disputes and construction projects.
Reading tips in construction contract dispute cases, due to the limitation of the Contractor’s qualification level and the relationship between general subcontracting and subcontracting of construction projects, the contract subject and legal relationship are very complex, which is also the main reason for the complex situation of the litigation subject of the case.
Therefore, the act of stamping by most companies was not in line with the above “coexisting debt” Therefore, most companies should not become the payment subject of the project payment in arrears.
and Li min Li v.
In the absence of evidence to prove the subordination or association between the debtor and the third party, it is not supported to require the third party and the debtor to bear joint and several liability for the contract debt only by affixing the official seal of the third party on the industrial injury insurance form.
In practice, according to the different contents of joint and several liability, joint and several liability can be divided into joint and several liability for breach of contract and joint and several liability for tort.
In this case, Li Shengli, as the agent of Anxin company, the legal acts implemented within the scope of agency authority should be borne by Anxin company, so the agent Li Shengli neither undertakes general contractual obligations nor joint and several liabilities for contractual debts.
According to the contract, the parties are Zhejiang Tiancheng company and Anxin company.
After the judgment of the first instance, both the plaintiff and the defendant failed to live up to the judgment and appealed, and then the court of second instance sent them back for retrial.
425.
Claim: the three defendants jointly pay the plaintiff the remaining project funds.
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The agency forms a tripartite structure, involving three parties and three legal relationships.
The effect of the agent’s independent legal act is directly or indirectly borne by the principal The legal acts directly or indirectly bind the principal and the third party.
When Li Minli is at the construction site, all matters shall be settled through negotiation with Li Shengli, the designated person in charge of Anxin company (also the legal representative of the third party Dadu company).
After remanding for retrial, Li Minli and Zhejiang Tiancheng company jointly filed a lawsuit to the court as the plaintiff.
Li Shengli Although he is the legal representative of Dadu company, he is also the agent of Anxin company.
The debtor and the third party reach a mutual agreement, and the third party will bear joint and several liability for the debt.
At this time, the consent of the creditor is not required (because the coexisting debt undertaking will not have an adverse impact on the creditor); 4.
On June 30, 2012, Zhejiang Tiancheng company and Anxin company signed the construction contract agreement, which clearly stipulated the project quality, wage standard, project unit price, contracting mode, construction progress, construction safety, project acceptance and settlement, rights and obligations, etc.
The creditor, the debtor and the third party reach a tripartite agreement, and the debtor and the third party shall be jointly and severally liable for the debt; 2.
Introduction to the author Liu Zhaoping is an intern lawyer of Beijing Qiankun law firm with a Bachelor of law degree.
2、 After the agreement is signed, Li Minli timely organizes personnel to enter the construction site for construction (Li Minli is fully responsible for the project) and completes the construction task according to the agreement.
They have no direct or indirect control relationship in terms of capital, operation, purchase and sales, no direct or indirect control, no other related relationship in terms of interests, and no personnel (there are serious overlaps and overlaps in organizational structure and personnel between companies), Finance (the books and accounts of companies are mixed, or the two are improperly offset), business (companies engage in the same business activities and are not separated from each other in the process of operation) Therefore, in this case, most companies and Anxin company do not have the situation that their respective properties cannot be distinguished, resulting in the loss of independent personality, which constitutes personality confusion.
Joint and several liability is a kind of strict liability.
The effect of the agent’s legal act within the scope of agency authority is directly or indirectly borne by the principal.
Brief introduction 1.
The case comes from Zhejiang Tiancheng Construction Group Co., Ltd.
Dadu company in this case does not constitute “coexisting debt commitment” In practice, “coexisting debt undertaking” usually has the following forms: 1.
According to Article 43 of the general principles of the civil law of the people’s Republic of China and Article 60 of the general provisions of the civil law of the people’s Republic of China, since Zhejiang Tiancheng company signed an agreement with Anxin company, Li Shengli was engaged in business activities on behalf of Anxin company, and the labor results of performing the obligations defined in the agreement were enjoyed by the defendant Anxin company, Li Shengli should not bear joint and several liability.
Li Minli has no construction qualification.
and Dulan Dadu Mining Co., Ltd.
Combined with a case in judicial practice, this paper makes a brief analysis.
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Joint and several liability is a kind of civil liability that two or more parties bear all or part of their joint debts according to the law or the agreement of the parties, and can cause internal debt relations.
The creditor and the third party reach a bilateral agreement, and the third party shall be jointly and severally liable for the debt, without the consent of the debtor (because the coexisting debt undertaking will not have an adverse impact on the debtor); 3.
Anxin company and Dadu company are two independent enterprises respectively.
Therefore, correctly determining the litigation subject or contract counterpart of contract disputes is the key to deal with construction project contract disputes.
