Can the project department go to the sales center without paying
Publish: 2021-05-20 17:24:47
1. Party A (the employer or the construction unit) has settled the project cost with Party B (the construction party or the construction project department), but Party B does not settle the project cost with the subcontracting object (including the Contractor). For this, if the wages of migrant workers are involved, Party B can complain to the labor supervision team; Even if it involves project funds, it can also request the administrative department to intervene in mediation. When it comes to the wages of migrant workers, according to the special provisions of the law, migrant workers can take the foreman (subcontractor), construction project department (illegal subcontractor) and construction unit (employer) as the defendants to file a lawsuit to the court, and the people's court shall accept it according to law< Article 26 of the supreme law of the people's Republic of China on the application of law in the trial of disputes over construction contracts of construction projects
2. If the actual construction contractor claims rights with the employer as the defendant, the people's court can add the subcontractor or illegal subcontractor as the party to the case. The employer is only responsible for the actual construction within the scope of the project price owed.
2. If the actual construction contractor claims rights with the employer as the defendant, the people's court can add the subcontractor or illegal subcontractor as the party to the case. The employer is only responsible for the actual construction within the scope of the project price owed.
2. The project department is not responsible, but the construction unit should be responsible. According to the law, the project payment should be supervised by the construction unit, and the contractor should send it to the workers according to the payroll instead of directly giving it to the so-called contractor, and the remaining profit will be given to him. You can first let them coordinate and put on record through the local Labor Supervision Brigade. If it's useless, you have to go to labor arbitration and Sue. The defendant is the construction unit who brings Party A by the way, and Party A has the responsibility to pay within the scope of outstanding project funds.
3. Party A (the employer or the construction unit) has settled the project cost with Party B (the construction party or the construction project department), but Party B does not settle the project cost with the subcontracting object (including the Contractor). For this, if the wages of migrant workers are involved, Party B can complain to the labor supervision team; Even if it involves project funds, it can also request the administrative department to intervene in mediation. When it comes to the wages of migrant workers, according to the special provisions of the law, migrant workers can take the foreman (subcontractor), construction project department (illegal subcontractor) and construction unit (employer) as the defendants to file a lawsuit to the court, and the people's court shall accept it according to law< Article 26 of the supreme law of the people's Republic of China on the application of law in the trial of disputes over construction contracts of construction projects
2. If the actual contractor claims rights with the employer as the defendant, the people's court can add the subcontractor or illegal subcontractor as the party to the case. The employer is only responsible for the actual construction within the scope of the project price owed.
2. If the actual contractor claims rights with the employer as the defendant, the people's court can add the subcontractor or illegal subcontractor as the party to the case. The employer is only responsible for the actual construction within the scope of the project price owed.
4. Feedback to the competent government departments for help, now many places have set up a special office for migrant workers affairs, and require enterprises to set up a special account for migrant workers' wages bank. Another way is through the coordination of labor supervision departments.
5. If the big package (Contractor) is legal, the wages of migrant workers should be paid by the big package (Contractor), and the developer, as the employer of the contractor, does not bear the obligation to pay wages to migrant workers. However, if the developer has not paid the Contractor's fees, it can save the fees first, or pay the fees directly to the migrant workers through the relevant departments (such as the labor department)
the wage problem of migrant workers is a particularly prominent social problem in China, which will have a variety of adverse effects on China's economic development. Measures should be taken to increase public financial investment in ecation and training, government intervention in the labor market, adjust the supply and demand of labor force, cultivate and play the role of non-governmental organizations, so as to create better material conditions for improving the quality of migrant workers.
the wage problem of migrant workers is a particularly prominent social problem in China, which will have a variety of adverse effects on China's economic development. Measures should be taken to increase public financial investment in ecation and training, government intervention in the labor market, adjust the supply and demand of labor force, cultivate and play the role of non-governmental organizations, so as to create better material conditions for improving the quality of migrant workers.
6. How the high court deals with the disputes involving the project Department of construction enterprises must be understood by those engaged in engineering- In recent years, when the courts in various places try the cases related to construction enterprises caused by the responsibility of construction project department, there is a big dispute on how to reasonably determine the responsibilities of the actual constructor, construction enterprise and the third party. In order to unify the judgment standard, try the disputes involving construction enterprises fairly according to law, and maintain the normal order of the construction market, the second people's Court of the provincial high court, after soliciting the opinions of the first people's court, the Fifth People's court, and the second people's Court of trial and supervision, formulated and issued on December 17 the "solutions to the difficult problems in the trial of disputes involving the project Department of construction enterprises" for the reference of courts all over the province in the trial of relevant cases<
the second people's Court of Zhejiang Higher People's court
answers to the difficult questions about the trial of disputes involving the project Department of construction enterprises
Q
1. What are the general requirements in the trial of cases involving the project Department of construction enterprises
in the trial of a case involving the project Department of a construction enterprise, when judging whether the behavior of the project manager and others is effective for the construction enterprise, we should follow the idea of "accurately defining the ty behavior, identifying the apparent agent according to law, and severely cracking down on false litigation", from whether the behavior has the clear authorization (principal-agent behavior) of the construction enterprise, Whether it belongs to ty behavior (ty agency behavior) and whether it constitutes apparent agency are examined in turn. If it constitutes principal-agent, ty act or apparent agency, the corresponding legal consequences should be borne by the construction enterprise. At the same time, in the trial of the case, we should also strengthen the authenticity review of the relevant contract, to prevent some parties from malicious collusion, fictitious debt, damage the legitimate rights and interests of construction enterprises
Q
2
according to the provisions of Article 2 and Article 6 of the measures for the management of project manager qualification of construction enterprises, project manager refers to the project manager who is entrusted by the legal representative of the enterprise to be fully responsible for the construction process of the project, and is the representative of the legal representative of the construction enterprise in the project. The project manager responsibility system is implemented in the construction of engineering project. The project manager is in the central position in the construction of engineering project and has the overall management responsibility for the construction of engineering project. It can be seen that the project manager is not only different from the legal representative of the construction enterprise, but also different from the general person in charge of the internal department of the construction enterprise, and has greater management authority for the construction activities of the project
in our opinion, the identification of the project manager's behavior as a ty behavior should generally meet the three elements of identity, name and authority. The identity element refers to the labor relationship between the project manager and the construction enterprise, which is the employee of the construction enterprise; Nominal element refers to the contract signed by the project manager in the name of the construction enterprise or project department; Authority element refers to the project manager's behavior within the scope of authorization of the construction enterprise, such as determining or changing the construction content, construction period, construction quality, project price, liability for breach of contract with the construction unit, recruiting necessary office personnel, purchasing or leasing necessary office appliances, raw materials, machinery and equipment, etc. If the behavior of the project manager meets the three requirements, it can be regarded as ty behavior, and the construction enterprise shall bear the corresponding contract responsibility
Q
3
when determining whether the behavior of the actor (project manager, actual constructor or other personnel of the project department, etc.) constitutes apparent agency, it is necessary to review whether the act of unauthorized agency objectively has the appearance of agency power according to the relevant provisions of the guiding opinions of the Supreme People's court on Several Issues concerning the trial of civil and commercial contract disputes under the current situation, And whether the relative person subjectively believes that the actor has the right of agency
when determining whether the actor has the representation of agency power, it should be comprehensively determined in combination with the actor's identity, authority, behavior mode and trading practice. Under one of the following circumstances, it can be recognized that the actor has the appearance of agency power:
(1) the project manager is the actual constructor or is actually responsible for the actual constructor, and signs the contract in the name of the construction enterprise or the project department within the scope of authority of the project department
(2) the actor signs the contract in the name of the construction enterprise with the blank letter of introction, power of attorney or contract of the construction enterprise or with unclear authority
(3) when the actor signs the contract within the authority of the project department, he has stamped the seal of the project department or the special seal actually used as the seal of the project department
(4) although no written contract has been signed with the third party, the construction enterprise knows or should know the civil act and does not object to it; Or engaging in the civil act is within the scope of authority of the project department, and the project department knows or should know but does not object
when judging whether the other party is in good faith and without fault, we should make a comprehensive judgment based on various factors in the process of contract conclusion and performance. In case of one of the following situations, the counterpart is generally not deemed to be in good faith and without fault:
(1) the contract signed obviously damages the interests of the construction enterprise
(2) the counterpart still signs a contract with the actor knowing that the relationship between the actor and the construction enterprise is affiliation, illegal subcontracting or illegal subcontracting
(3) goods, machinery, equipment and labor services under the contract are not actually provided to the project< (4) the amount of transaction is obviously not commensurate with the actual demand and scale
Q
4. Who should bear the burden of proof of apparent agency
the Supreme People's Court on the application of & lt; Civil Procere Law of the people's Republic of China & gt; Item (1) of Article 91 of the interpretation of the people's Republic of China stipulates that "the party claiming the existence of the legal relationship shall bear the burden of proof for the basic facts of the legal relationship". Therefore, it is necessary for the opposite party who advocates the establishment of apparent agency to bear the burden of proof on whether the act of agency objectively has the appearance of agency right and whether it is in good faith and has no lost ground to believe that the actor has the right of agency; The construction enterprises can provide counter evidence for the appearance that the actor does not have the right of agency, and the relative person is not in good faith or has fault. If the people's court still fails to form mental evidence after synthesizing the evidence of the whole case and the court hearing, the opposite party shall bear the adverse consequences
Q
5. Is the construction enterprise responsible for the legal consequences of the contract with special seals such as technical seal, financial seal and drawing review seal of the project department
the special seals of project department, such as technical seal, financial seal and drawing review seal, have defined the use scope of the seals. Generally, the actor can not be regarded as authorized to sign a contract, so the construction enterprise should not bear the contract responsibility. However, if the contract signed by the project department with the above seal has been recognized by the construction enterprise, it can still be recognized as having the right to act as an agent. The following factors can be used as reference to judge whether the construction enterprise recognizes or not: (1) whether the construction enterprise directly pays the counterpart or participates in the performance of the contract in other ways 2) The invoice issued by the relative person to the construction enterprise, whether the construction enterprise is actually recorded, etc
Q
6. The seal on the contract is forged or privately engraved by the project manager, the actual constructor or others. Does the signed contract have legal effect on the construction enterprise
generally, the seal forged or privately engraved by the project manager, the actual constructor or others on the contract does not represent the real intention of the construction enterprise, and does not have legal effect on the construction enterprise. However, if it can be concluded that the actor's behavior constitutes the right agent behavior or apparent agent behavior based on other evidence of the whole case, the construction enterprise should still bear the corresponding contract responsibility
Q
7. If the raw materials, machinery and equipment purchased or leased by the actor have been used in the construction project, how to deal with them
when the actor purchased or leased necessary raw materials, machinery and equipment from a third party in the name of the construction enterprise or project department, he did not sign a written contract, or the written contract was not stamped with the seal of the construction enterprise or project department, but the raw materials, machinery and equipment were actually used in the construction project, If the third party does not know or should not know that the actor has no agency authority, the construction enterprise should bear the corresponding contract responsibility
when the people's court determines that "raw materials and machinery have actually been used in the construction project", it shall make a comprehensive judgment according to whether the raw materials and machinery have been transported to the construction project site, and whether the quantity and type of raw materials and machinery are compatible with the actual demand and scale of the construction project
Q
8. If the actor borrows money from a third party and the money has been remitted to the project department or actually used for the construction project, how to deal with it
unless explicitly authorized by the construction enterprise, the project department or project manager has no right to borrow money from others
if the actor borrows money from a third party in the name of the construction enterprise or the project department, and the third party can prove that it has reasonable reasons to believe that the actor has agency authority, and the money is directly remitted to the bank account of the construction enterprise or actually used for the construction project, the construction enterprise shall bear the corresponding contract responsibility
Q
9. Should the people's court review the specific transactions of the contract when the relative party claims rights based on the settlement certificate issued by the project manager or the actual constructor
if the counterpart requests the construction enterprise to bear the contract liability according to the settlement certificate issued by the project manager and the actual constructor, the people's court shall review the specific performance of the contract. If the construction enterprise raises doubts about the rationality of the use site, use time, price, standard, quantity, signing time, etc. of the contract object, the people's court may require the opposite party to provide other evidence in addition to the settlement certificate to support it; They can also take the initiative to investigate and collect evidence from relevant departments and personnel. If the relative party is able to provide but refuses to provide evidence other than the settlement voucher, and the people's court is unable to find out through investigation and evidence collection, the relative party shall bear the adverse consequences
the people's court shall, in accordance with the relevant provisions of the Civil Procere Law of the people's Republic of China, admonish, fine or detain the counterpart who maliciously colludes with the project manager, the actual constructor or other people, forges the settlement materials such as visa form and settlement form, or documents such as contract, IOU and creditor's rights transfer agreement, deliberately damaging the legitimate rights and interests of the construction enterprise; If it may constitute a criminal crime, it shall be transferred to the public security organ for investigation and punishment according to law.
the second people's Court of Zhejiang Higher People's court
answers to the difficult questions about the trial of disputes involving the project Department of construction enterprises
Q
1. What are the general requirements in the trial of cases involving the project Department of construction enterprises
in the trial of a case involving the project Department of a construction enterprise, when judging whether the behavior of the project manager and others is effective for the construction enterprise, we should follow the idea of "accurately defining the ty behavior, identifying the apparent agent according to law, and severely cracking down on false litigation", from whether the behavior has the clear authorization (principal-agent behavior) of the construction enterprise, Whether it belongs to ty behavior (ty agency behavior) and whether it constitutes apparent agency are examined in turn. If it constitutes principal-agent, ty act or apparent agency, the corresponding legal consequences should be borne by the construction enterprise. At the same time, in the trial of the case, we should also strengthen the authenticity review of the relevant contract, to prevent some parties from malicious collusion, fictitious debt, damage the legitimate rights and interests of construction enterprises
Q
2
according to the provisions of Article 2 and Article 6 of the measures for the management of project manager qualification of construction enterprises, project manager refers to the project manager who is entrusted by the legal representative of the enterprise to be fully responsible for the construction process of the project, and is the representative of the legal representative of the construction enterprise in the project. The project manager responsibility system is implemented in the construction of engineering project. The project manager is in the central position in the construction of engineering project and has the overall management responsibility for the construction of engineering project. It can be seen that the project manager is not only different from the legal representative of the construction enterprise, but also different from the general person in charge of the internal department of the construction enterprise, and has greater management authority for the construction activities of the project
in our opinion, the identification of the project manager's behavior as a ty behavior should generally meet the three elements of identity, name and authority. The identity element refers to the labor relationship between the project manager and the construction enterprise, which is the employee of the construction enterprise; Nominal element refers to the contract signed by the project manager in the name of the construction enterprise or project department; Authority element refers to the project manager's behavior within the scope of authorization of the construction enterprise, such as determining or changing the construction content, construction period, construction quality, project price, liability for breach of contract with the construction unit, recruiting necessary office personnel, purchasing or leasing necessary office appliances, raw materials, machinery and equipment, etc. If the behavior of the project manager meets the three requirements, it can be regarded as ty behavior, and the construction enterprise shall bear the corresponding contract responsibility
Q
3
when determining whether the behavior of the actor (project manager, actual constructor or other personnel of the project department, etc.) constitutes apparent agency, it is necessary to review whether the act of unauthorized agency objectively has the appearance of agency power according to the relevant provisions of the guiding opinions of the Supreme People's court on Several Issues concerning the trial of civil and commercial contract disputes under the current situation, And whether the relative person subjectively believes that the actor has the right of agency
when determining whether the actor has the representation of agency power, it should be comprehensively determined in combination with the actor's identity, authority, behavior mode and trading practice. Under one of the following circumstances, it can be recognized that the actor has the appearance of agency power:
(1) the project manager is the actual constructor or is actually responsible for the actual constructor, and signs the contract in the name of the construction enterprise or the project department within the scope of authority of the project department
(2) the actor signs the contract in the name of the construction enterprise with the blank letter of introction, power of attorney or contract of the construction enterprise or with unclear authority
(3) when the actor signs the contract within the authority of the project department, he has stamped the seal of the project department or the special seal actually used as the seal of the project department
(4) although no written contract has been signed with the third party, the construction enterprise knows or should know the civil act and does not object to it; Or engaging in the civil act is within the scope of authority of the project department, and the project department knows or should know but does not object
when judging whether the other party is in good faith and without fault, we should make a comprehensive judgment based on various factors in the process of contract conclusion and performance. In case of one of the following situations, the counterpart is generally not deemed to be in good faith and without fault:
(1) the contract signed obviously damages the interests of the construction enterprise
(2) the counterpart still signs a contract with the actor knowing that the relationship between the actor and the construction enterprise is affiliation, illegal subcontracting or illegal subcontracting
(3) goods, machinery, equipment and labor services under the contract are not actually provided to the project< (4) the amount of transaction is obviously not commensurate with the actual demand and scale
Q
4. Who should bear the burden of proof of apparent agency
the Supreme People's Court on the application of & lt; Civil Procere Law of the people's Republic of China & gt; Item (1) of Article 91 of the interpretation of the people's Republic of China stipulates that "the party claiming the existence of the legal relationship shall bear the burden of proof for the basic facts of the legal relationship". Therefore, it is necessary for the opposite party who advocates the establishment of apparent agency to bear the burden of proof on whether the act of agency objectively has the appearance of agency right and whether it is in good faith and has no lost ground to believe that the actor has the right of agency; The construction enterprises can provide counter evidence for the appearance that the actor does not have the right of agency, and the relative person is not in good faith or has fault. If the people's court still fails to form mental evidence after synthesizing the evidence of the whole case and the court hearing, the opposite party shall bear the adverse consequences
Q
5. Is the construction enterprise responsible for the legal consequences of the contract with special seals such as technical seal, financial seal and drawing review seal of the project department
the special seals of project department, such as technical seal, financial seal and drawing review seal, have defined the use scope of the seals. Generally, the actor can not be regarded as authorized to sign a contract, so the construction enterprise should not bear the contract responsibility. However, if the contract signed by the project department with the above seal has been recognized by the construction enterprise, it can still be recognized as having the right to act as an agent. The following factors can be used as reference to judge whether the construction enterprise recognizes or not: (1) whether the construction enterprise directly pays the counterpart or participates in the performance of the contract in other ways 2) The invoice issued by the relative person to the construction enterprise, whether the construction enterprise is actually recorded, etc
Q
6. The seal on the contract is forged or privately engraved by the project manager, the actual constructor or others. Does the signed contract have legal effect on the construction enterprise
generally, the seal forged or privately engraved by the project manager, the actual constructor or others on the contract does not represent the real intention of the construction enterprise, and does not have legal effect on the construction enterprise. However, if it can be concluded that the actor's behavior constitutes the right agent behavior or apparent agent behavior based on other evidence of the whole case, the construction enterprise should still bear the corresponding contract responsibility
Q
7. If the raw materials, machinery and equipment purchased or leased by the actor have been used in the construction project, how to deal with them
when the actor purchased or leased necessary raw materials, machinery and equipment from a third party in the name of the construction enterprise or project department, he did not sign a written contract, or the written contract was not stamped with the seal of the construction enterprise or project department, but the raw materials, machinery and equipment were actually used in the construction project, If the third party does not know or should not know that the actor has no agency authority, the construction enterprise should bear the corresponding contract responsibility
when the people's court determines that "raw materials and machinery have actually been used in the construction project", it shall make a comprehensive judgment according to whether the raw materials and machinery have been transported to the construction project site, and whether the quantity and type of raw materials and machinery are compatible with the actual demand and scale of the construction project
Q
8. If the actor borrows money from a third party and the money has been remitted to the project department or actually used for the construction project, how to deal with it
unless explicitly authorized by the construction enterprise, the project department or project manager has no right to borrow money from others
if the actor borrows money from a third party in the name of the construction enterprise or the project department, and the third party can prove that it has reasonable reasons to believe that the actor has agency authority, and the money is directly remitted to the bank account of the construction enterprise or actually used for the construction project, the construction enterprise shall bear the corresponding contract responsibility
Q
9. Should the people's court review the specific transactions of the contract when the relative party claims rights based on the settlement certificate issued by the project manager or the actual constructor
if the counterpart requests the construction enterprise to bear the contract liability according to the settlement certificate issued by the project manager and the actual constructor, the people's court shall review the specific performance of the contract. If the construction enterprise raises doubts about the rationality of the use site, use time, price, standard, quantity, signing time, etc. of the contract object, the people's court may require the opposite party to provide other evidence in addition to the settlement certificate to support it; They can also take the initiative to investigate and collect evidence from relevant departments and personnel. If the relative party is able to provide but refuses to provide evidence other than the settlement voucher, and the people's court is unable to find out through investigation and evidence collection, the relative party shall bear the adverse consequences
the people's court shall, in accordance with the relevant provisions of the Civil Procere Law of the people's Republic of China, admonish, fine or detain the counterpart who maliciously colludes with the project manager, the actual constructor or other people, forges the settlement materials such as visa form and settlement form, or documents such as contract, IOU and creditor's rights transfer agreement, deliberately damaging the legitimate rights and interests of the construction enterprise; If it may constitute a criminal crime, it shall be transferred to the public security organ for investigation and punishment according to law.
7. Now our national policy firmly does not allow the arrears of migrant workers' wages, and the practice of contracting workers is against the law, which requires the labor bureau to investigate and never be soft handed and act according to the law
8. The fastest way to solve the problem is to complain to the Labor Supervision Brigade of the place where the employment is located. If the complaint doesn't work, you can apply to the local people's court for a payment order according to law
or apply for labor arbitration directly to the local labor administrative department (no charge, no lawyer), and let the employer pay wages through the award issued by labor arbitration. If it is not paid, it can apply to the court for enforcement
the salary shall be paid to the laborer monthly in the form of currency, and the laborer's salary shall not be dected or defaulted without reason“ "Monthly payment" means that the salary should be paid in the form of monthly salary, and it also includes monthly payment. Therefore, the employer should settle the salary within 30 days after the end of the natural month, and if it exceeds 30 days, it will constitute wage arrears.
or apply for labor arbitration directly to the local labor administrative department (no charge, no lawyer), and let the employer pay wages through the award issued by labor arbitration. If it is not paid, it can apply to the court for enforcement
the salary shall be paid to the laborer monthly in the form of currency, and the laborer's salary shall not be dected or defaulted without reason“ "Monthly payment" means that the salary should be paid in the form of monthly salary, and it also includes monthly payment. Therefore, the employer should settle the salary within 30 days after the end of the natural month, and if it exceeds 30 days, it will constitute wage arrears.
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