The Contractor'S Employment Relationship Is Confirmed.

In March 12, 2014, a building and installation company in Chengde (hereinafter referred to as Jianan company) contracted for a commercial and residential project developed by a Real Estate Company.

In March 25th of the same year, the staff of Jianan company signed a lease agreement with Wei and Shi.

After the signing of the agreement, Wei introduced the work to Wang Moubo.

The oral agreement is provided by the Wei one party and the processing fee for each extension.

Because there is no venue for the extension of wood, Wei and Jianan company Xu agreed that the working place of the wooden company should be identified as Jianan company's living area (dining hall entrance), and the personnel who had joined the wooden side had dinner in Jianan company canteen, and stayed at Jianan company's building site housing.

In April 20th of the same year, Wang Moubo brought his own equipment, together with Deng Mouwu and Wang, to the site to engage in the work of the wooden side.

In May 13th of the same year, Wang Moubo recruited Song Mouhui to come to the site to engage in wood work.

The wage standard and Wang Moubo agreed to pay 0.70 yuan for processing every lumber.

In May 19th of the same year, Song Mouhui was injured in his work.

In May 20th of the same year, the deputy manager of Jianan company sent Wang Moubo 20 thousand yuan to pay for the medical expenses of Song Mouhui.

In December 5, 2014, Song Mouhui applied the Jianan company and a Real Estate Company as the respondent to apply for a labor arbitration application to the labor and personnel dispute arbitration committee of Kuancheng Manchu Autonomous County, and asked for confirmation of its labor relationship with Jianan company or a Real Estate Company.

In December 24th of the same year, Kuancheng labor and personnel arbitration commission ruled that there was labor relationship between Song Mouhui and Jianan company.

Jianan refused to accept the labor arbitration award and filed a lawsuit with the people's Court of Kuancheng Manchu Autonomous County.

The court of first instance ruled that there was no labor relationship between Jianan company and Song Mouhui.

Song Mouhui said: through his introduction by Wang Moubo and Deng Mouwu, he worked in Jianan company, where he was working at the entrance of Jianan company dining hall. He was used by Jianan company to support the box board, dining at Jianan company's site canteen, and staying in the dormitory of Jianan company. The work content was supervised and directed by Ma An technician and project manager of Jianan company, and he formed a factual labor relationship with Jianan company.

The trial concluded that the leasing contract between Wei Mou, Shimou and Jianan company staff was valid and valid. Without any valid evidence, it was presumed that Wei Mou and Shimou formed contract processing relationship with Wang Moubo. The two facts were seriously wrong.

Song Mouhui refused to accept the first instance judgment and requested the court of second instance to change the fact labor relationship between the two sides according to law.

Jianan company said: our company did not subcontract any construction and installation projects, but not recruited Song Mouhui; Song Mouhui engaged in the work of the extension of wood, does not belong to the scope of our company; our company and Wei, stone, a lease contract, is true, legal, effective.

Song Mouhui's work is not subject to our company's management, nor has our company paid the wages of Song Hui. It has no affiliation with our company. Song Mouhui has no evidence to prove that there is labor relationship between us and our company.

It should be maintained.

Wang Moubo (first instance third people) said: the deputy manager of Jianan company, Ma Mou, endorsed Song Mouhui's purchase of the wooden side which he bought from Pingquan. The lease agreement signed by Jianan company and Wei and Shi Mou is invalid in form and content; the content of the short message linked to Ma, the details of the bank card paction, and the proof of the payment certificate can prove that the court of first instance found that "the lease agreement" has been confirmed by the court of first instance.

"Effective" is illegal and erroneous; Wang Moubo's tools do not affect the establishment of labor relations between Song Mouhui and Jianan company; witness Deng Mouwu's testimony proves that Song Mouhui settled in Jianan company and settled on piecework wage, and had fact labor relations with Jianan company; Song Mouhui and Jianan company did not work as processing wood, but worked in Jianan company under Jianan engineering project requirement, and there was no contract relationship.

The second instance of the intermediate people's Court of Chengde held that the focus of controversy in this case was Song Mouhui's work at the construction site of Jianan company, who was employed in the work, who was employed, who was in charge of the work, and who should pay the remuneration.

The identification of factual labor relations should not be too strict. The evidence provided by workers such as work permits, service cards and testimony of other workers can be used as proof of the existence of fact labor relations.

Due to the relatively short working hours of Song Hui, the case has not yet been paid, and the facts of the case can be identified only through the statement of the parties and the testimony of other workers.

According to Jianan company allowing Song Mouhui, Wang Moubo and other laborers to engage in timber work in front of the dining hall of their construction site, the timber used for construction is also used for the construction sites and accommodation for workers such as Song Mouhui and Wang Moubo. After the injury of Song Hui, the Jianan company prepaid 20 thousand yuan medical expenses through Wang Moubo's bank card. Combined with the statement of Song Mouhui, Wang Moubo and testimony of witnesses, he found that he was engaged in the work of wood extension, and the deputy manager of the work had asked him to ask for leave. He asked for leave and agreed with the Deputy manager of the horse, and the piece wage.

According to the seventh provision of the labor contract law of the People's Republic of China, the employer has established labor relations with the laborers since the day of their own employment. Song Mouhui believes that the appeals of the fact labor relationship between Jianfang and the Jianan company are supported by the court of second instance.

The court of first instance decided on the basis of the wooden rental agreement signed by Wei, Shimou and Xu and the testimony of the witness Wei Mou: "it signed a wooden lease agreement with Xu, and borrowed the site canteen to find someone to join the wooden side. The first person named Fengning was named Hou, who was called Hou's Chengde nephew.

Hou's nephew talked with him about the details of the extension of the wooden side. When the nephew did not come in, a surnamed Wang came over. "Song Mouhui and Wang Moubo were employed in Wei's work.

Song Mouhui and Wang Moubo did not recognize the testimony of witness Wei. Therefore, the court of first instance found that the facts were not clear and the evidence was insufficient. There was no factual labor relationship between Song Mouhui and Jianan company.

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In January 4, 2016, the intermediate people's Court of Chengde made reference to the second regulations of the Ministry of labor and Social Affairs (2005) 12 on the establishment of labor relations related matters (2015) to make civil judgments No. 03019 of the people's final word no. 03019: (1) to revoke the first instance Court (2015) wide civil code 3445th civil judgement; two, Song Mouhui from May 13, 2014 to May 19, 2014, there was a factual labor relationship with Jianan company during the period of engaging in the wood extension work.

As early as 2011, the summary of the national civil trial conference stipulates that "the construction unit will contract the project to the contractor, and the contractor illegally subcontracts or illegally subcontracts to the actual constructor. If the worker who is actually employed by the construction party requests confirmation of the labor relationship with the employer who has the qualification of the employer, he will not support it."

But in reality, some construction business subcontracting or subcontracting is true. There are such problems as fictitious contract, legal relationship, avoidance of labor relations and pfer of labor risks.

The seventh provision of the labor contract law stipulates that the employer shall establish labor relations with the laborers from the date of their employment.

What is "employment"? At present, it is generally believed that the first clause of the notice of the Ministry of labor and social security on the establishment of relevant matters concerning labor relations stipulates three contents. The first item specifies the conditions for the main body of labor relations (referring to the employing units and labourers), and the second and third contents, "labor management of the employing units of the laborers, and those arranged by the employing units."

Labor, the labor provided by labourers is an integral part of the business of the employing units ". It is regarded as an external manifestation of" employment "." the labor rules and regulations formulated by the employer according to law are applicable to labourers "are regarded as the internal essential characteristics of employment.

Popularly speaking, the former can be called the "face" of labor relations, and the latter can be called the "Li Zi" of labor relations.

In addition, workers' members' rights and democratic rights are also regarded as the basic characteristics of labor relations.

Recognizing labor relations in the construction industry should not be based on agreement but not reality.

The employer's "employment" behavior is always manifested in specific behaviors such as working hours, work places, work contents and work remuneration. These are also evidential materials for confirming labor relations.

The judiciary should not be too strict about the weak position of workers and the ability to provide evidence in labor relations.

In this case, the court of first instance found out that the two sides did not constitute labor relations from the establishment of civil relations in the written agreement of the main body concerned, and the court of second instance changed the sentence according to the social reality and relevant evidence in accordance with the law. It safeguarded the legitimate rights and interests of the workers in accordance with the law, and avoided the "bloodshed and tears" and "just tardiness" of the workers, so that the workers obtained justice and fairness in specific cases.

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