How does the court handle several litigation disputes in project connection? -Project-related topics (8)

Fifth, the related party guarantees the debts arising from the guarantee in the name of the related party branch without authorization. 1. In the case of engineering contract disputes caused by engineering quality problems, most people think that according to Article 43 of the Opinions, both parties belong to the same litigation subject, and they are jointly and severally liable for the lawsuit brought by the employer due to engineering quality problems. This is because the employer and the related party are the main body of the construction project contract, and the related party is the actual executor of the construction project. There is a causal relationship between the project quality problems and actual performance behaviors of related parties and the loan qualification and business license behaviors of related parties. Naturally, it is necessary to order the actual executor of the construction project contract to bear civil liability, and order the construction enterprise to bear civil liability in the name of loan, not only because it is the main body of the contract, but also because the law must make a negative evaluation of this kind of affiliated behavior and implement strict liability in order to achieve the legislative intention of putting an end to or curbing this kind of behavior. Another view is that if the employer does not know the affiliated relationship between the two parties, it is intentional fraud for the affiliated party to use the name of the affiliated party in the project construction. Therefore, according to the law of invalid civil juristic act, the contract signed by the employer and the contractor shall be confirmed invalid. There is some truth in this view, but starting from the principle of encouraging transactions in the new contract law, the right to revoke the validity of the contract should be given to the employer, who will finally decide the validity of the contract without violating the national interests. Secondly, the disputes between related parties and the third party about the purchase and sale contract of engineering materials and the labor disputes with the employer are civil legal acts between related parties and the third party for their own interests. There are two different ways to deal with the trial practice in our hospital: one is to order the related party to bear civil liability alone, on the basis that the contractual relationship between the related party and the third party is relative; The second is to order related parties to bear joint and several liability, according to Article 43 of the Opinions. In practice, it is also worth discussing how to deal with such disputes and how to divide the responsibility. The view of the first approach is that the contract only produces the creditor-debtor relationship between the two parties, which is commonly called the principle of relativity of contracts. According to this, it is considered that the general sales contract only produces the relationship between the rights and obligations of the buyer and the seller, and has nothing to do with the third party outside the contract. Therefore, when a related party signs a sales contract in its own name, its rights and obligations shall be borne by itself and should not be traced back to the basic affiliation. The second way is that related parties sign purchase and sale contracts or employment contracts in the name of related parties or related party branches. At this time, both parties to the sales contract or the employment contract are related parties and the third party, and the related parties should bear civil liabilities for the contract debts, but at this time, the related parties are the actual performance subjects of the contract and should also bear the contract debts. The theoretical basis for ordering the related party to bear the contract debts lies not only in the fact that the related party is a formal contract subject, but also in the fact that the related party has obtained subsidiary interests from the related party, and there is a causal relationship between the related party's purchase and sale behavior and the related party's convenience for the related party. By ordering related parties to take responsibility, it is beneficial to protect the legitimate rights and interests of bona fide third parties (sellers). However, at this time, the form of responsibility of both parties is controversial. First, it is believed that related parties should bear joint and several liabilities to the counterpart of the contract. The theoretical basis is that the value of creditor's rights of bona fide third parties is higher than that of related parties. Second, according to the principle of consistency of rights and obligations, related parties should be liable for compensation if they cannot pay off their debts. In practice, it is more inclined to order the related party to bear the liability for compensation for the outstanding debt. Because it not only determines that related parties must be responsible for their own actions, but also has no influence on the realization of creditor's rights. This is because even if the related party cannot bear civil liability, the related party has enough strength to bear civil liability. Third, the construction contract breach dispute caused by the construction unit's default on the project payment. In this kind of case, the affiliated unit and the affiliated construction team are creditors, but the affiliated unit is the nominal creditor and the construction team is the actual creditor. The parties to a construction contract are the construction company and the construction unit. It is natural for a construction company to claim creditor's rights from the construction unit according to the contract. Whether the person in charge of the affiliated construction team can claim the creditor's rights in his own name is controversial in practice. One view is that the construction team can only claim rights in the name of the construction company or claim rights from the construction company; Another view is that the construction team can claim rights from the construction company in its own name. The reason for the first view is that the individual is not a party to the contract, and the person in charge of the construction team cannot claim the creditor's rights personally. If individuals are allowed to claim creditor's rights in the name of the construction company, because individuals do not have construction qualifications, it will involve the effectiveness of the construction contract and cause confusion in legal relations. The individual construction team can only claim rights in the name of the construction company or claim rights from the construction company. The reason of the second view is that as long as it is found out that the construction team really belongs to the affiliated nature, the individual of the construction team can claim the creditor's rights according to the construction contract. Because the person in charge of the construction team personally invests and organizes the construction, the individual has the right to claim the project payment from the construction unit, and the case result has a direct causal relationship with it, so it has the plaintiff's subject qualification and should be given the subject qualification to file a lawsuit. Because if the person in charge of the construction team can't sue as the plaintiff, the construction company doesn't invest, and there is no actual loss, and if the construction company doesn't sue, the rights and interests of the person in charge of the construction team can't be protected, and the wages and materials of migrant workers can't be paid, which will inevitably lead to many social contradictions, which is also inconsistent with the functions and responsibilities of the people's courts in resolving disputes. Regarding the validity of the construction contract, after the construction company signs the contract with the construction unit, the construction team will organize the construction. If one party of the construction team has fulfilled its contractual obligations and there are no other illegal acts, the contract shall be deemed valid. If there are serious quality problems in the construction of the construction team, it shall be determined that the construction enterprise subcontracts the project to individuals who do not have the corresponding qualifications, which violates the provisions of Article 29 of the Construction Law, and the contract shall be deemed invalid. In practice, due to the strict construction supervision system and fewer engineering quality problems, a large number of construction contract disputes belong to the arrears of construction funds by builders. If the construction contract is deemed invalid and the principle of mutual return cannot be applied, the people's court shall carefully deem the construction contract invalid. Fourth, because the affiliated construction enterprises owe the project funds to the affiliated construction team, and the construction team owes the management fees and prepaid material fees to the construction enterprises. There are also two differences in practice. One view is that the disputed construction company and construction team belong to legal persons, and no matter who brings a lawsuit, the people's court should not accept it; The second opinion is that the construction team belongs to the subordinate organization of the construction company in name, but it is actually affiliated. The person in charge of the construction company and the construction team, one is a legal entity and the other is an individual citizen, belonging to different subjects. Disputes over creditor's rights and debts caused by affiliation belong to civil rights and obligations, and the people's court shall accept the prosecution of either party. When the court hears such cases, if there is a written supplementary contract, the rights and obligations of both parties shall be determined with reference to the contract; If there is no written contract, the rights and obligations of both parties shall be determined according to the relationship of affiliation in the usual sense, that is, the creditor shall be responsible for the debts arising from the construction, and the person in charge of the construction team shall enjoy the project payment owed by the construction unit and repay the money owed to others during the construction. However, regarding the management fee, if the affiliated company implements project management, the person in charge of the construction team is obliged to pay the management fee of the construction company as agreed. If the construction enterprise occupies the project payment, it shall return it to the person in charge of the construction team. If a construction enterprise pays the service fee, material fee and other expenses on behalf of the construction team, it may claim compensation from the construction team. V. The related party provides guarantee for the debt in the name of the related party's branch without authorization, and there are cases where the related party provides guarantee in the name of the related party's branch without authorization. In this case, there are many different opinions on the validity of the guarantee contract and the civil liability of related parties. The first view is that related parties should bear civil liability independently to ensure the validity of the contract. The basis is that the related party's external guarantee in the name of the related party branch for undertaking the project has gone beyond the scope of the affiliated relationship between related parties, so the related party should be responsible for its own actions. But what this scheme can't solve is that the interests of creditors can't be guaranteed when the related parties don't have the ability to bear civil liability independently. The second view is that in order to ensure the validity of the contract, the related parties bear joint and several liability. According to Article 43 of the Opinions. However, this is different from the relationship between the above two kinds of debts. In the first two kinds of debts, the related party is the actual executor of the contract. Compared with the guarantee contract, there is no question of who is the actual executor of the contract. It is precisely because there is no actual performance when the debt cannot be repaid that the lawsuit is triggered. Therefore, the structural differences between the debts in this case and the first two types of debts determine that the form of liability cannot be determined. The third view is that the guarantee contract is invalid and the legal person of the branch company shall bear the fault liability. Based on the provisions of Articles 10 and 29 of the Guarantee Law. That is, if the branch of an enterprise as a legal person provides a guarantee without the written authorization of the legal person, the guarantee contract is invalid and the legal person bears the fault liability. In fact, this view has been divorced from the identification of affiliation, and is based on essentially identifying virtual branches without identifying affiliation. In the trial, the court generally thinks that the guarantee contract is valid, because the affiliated relationship of an enterprise as a legal person is essentially different from that of its branches. The related party is the civil subject of independent accounting, and the branch of an enterprise as a legal person is not an independent accounting unit, so it cannot bear civil liability externally. Therefore, if a branch makes a guarantee without the written authorization of a legal person, the guarantee contract shall be deemed invalid. In this case, because the branch is affiliated, it is only a virtual subject, and in the guarantee contract, it means the affiliated party, so it is more appropriate to identify the guarantor as the affiliated party. It should be said that the phenomenon of attaching to the law is widespread in the construction industry and is the inevitable product of economic development. It has some basic characteristics of agency and performance assistance, but they are not exactly the same, so it is difficult for us to set a specific position for it in civil law theory.