陈某与福明经营部租赁合同纠纷案评析
发布时间：2019-02-20 10:23
【摘要】：近年来，在建筑施工领域，，存在着施工挂靠、转包、违法分包等不规范经营行为。以项目经理为代表的实际施工人，往往以挂靠或承包单位的名义对外签订建筑材料买卖、租赁、金钱借贷、劳务合同，由此引发出大量民事纠纷。本案是一个很有代表性的案例。红星公司将其新建大厦项目的主体工程分包给了实际施工人陈国泉，陈国泉以新建大厦项目部的名义，对外与福明经营部签订了建筑器材租赁合同，福明经营部按约履行了合同，但是，陈国泉却下落不明。福明经营部要求新建大厦项目部来承担合同责任，新建大厦项目部以陈国泉并未得到授权为由拒绝承担责任，从而引发双方纠纷。在案件审理过程中，原、被告双方对于陈国泉行为的性质产生了很大的分歧，以什么标准断定陈国泉行为是职务行为、表见代理行为还是个人行为，成为了本案的焦点。 职务行为必须以双方之间存在劳动合同关系或者事实劳动关系为要件，因而陈国泉的行为非职务行为。表见代理行为的认定有四个构成要件，而该案也不完全符合这四个构成要件，因此也非表见代理行为。对于此类案件，由于我国表见代理立法缺乏可操作性，法院在审理此类案件时标准无法统一，涉及表见代理的复杂民事纠纷频频发生。因此，立法和审判实践中，应该对表见代理制度进一步细化，确定表见代理行为的认定机制，统一标准，规范认定行为。同时，对于建筑企业和相对人而言，也应该加强管理和审核制度，从而最大限度地规避风险的发生。
[Abstract]:In recent years, in the field of construction, there are construction links, subcontracting, illegal subcontracting and other non-standard business behavior. The actual constructors, represented by the project manager, often sign building materials sale, leasing, money borrowing and labor contracts in the name of affiliated or contracted units, which leads to a large number of civil disputes. This case is a representative case. Hongxing Company subcontracted the main part of its new building project to the actual constructor, Chen Guoquan, who, in the name of the new building project department, signed a lease contract for construction equipment with the Fuming management department. Fuming operating Department according to the contract to fulfill the contract, however, the whereabouts of Chen Guoquan is unknown. The management department of Fuming requested the new building project department to assume contract liability, and the new building project department refused to accept the responsibility on the grounds that Chen Guoquan was not authorized to do so, thus triggering a dispute between the two sides. In the course of the trial of the case, the two sides of the defendant had great differences about the nature of Chen Guoquan's behavior, and by what criteria they decided that Chen Guoquan's behavior was an act of duty, an apparent act of agency or an act of an individual, which became the focus of the case. The duty behavior must take the labor contract relation or the fact labor relation between the two sides as the essential element, therefore Chen Guoquan's behavior is not the duty behavior. There are four constitutive elements in the cognizance of apparent agency act, and the case does not completely accord with these four constitutive elements, so it is not apparent agency act. For this kind of cases, because of the lack of maneuverability in the legislation of apparent agency in our country, the court can not unify the standard in the trial of such cases, and complex civil disputes involving surrogate agency occur frequently. Therefore, in legislation and trial practice, the system of apparent agency should be further refined, the identification mechanism of the act of apparent agency should be determined, the standard should be unified, and the act of cognizance should be standardized. At the same time, the management and audit system should be strengthened to avoid the risk.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D920.5;D923.6
本文编号：2427092
[Abstract]:In recent years, in the field of construction, there are construction links, subcontracting, illegal subcontracting and other non-standard business behavior. The actual constructors, represented by the project manager, often sign building materials sale, leasing, money borrowing and labor contracts in the name of affiliated or contracted units, which leads to a large number of civil disputes. This case is a representative case. Hongxing Company subcontracted the main part of its new building project to the actual constructor, Chen Guoquan, who, in the name of the new building project department, signed a lease contract for construction equipment with the Fuming management department. Fuming operating Department according to the contract to fulfill the contract, however, the whereabouts of Chen Guoquan is unknown. The management department of Fuming requested the new building project department to assume contract liability, and the new building project department refused to accept the responsibility on the grounds that Chen Guoquan was not authorized to do so, thus triggering a dispute between the two sides. In the course of the trial of the case, the two sides of the defendant had great differences about the nature of Chen Guoquan's behavior, and by what criteria they decided that Chen Guoquan's behavior was an act of duty, an apparent act of agency or an act of an individual, which became the focus of the case. The duty behavior must take the labor contract relation or the fact labor relation between the two sides as the essential element, therefore Chen Guoquan's behavior is not the duty behavior. There are four constitutive elements in the cognizance of apparent agency act, and the case does not completely accord with these four constitutive elements, so it is not apparent agency act. For this kind of cases, because of the lack of maneuverability in the legislation of apparent agency in our country, the court can not unify the standard in the trial of such cases, and complex civil disputes involving surrogate agency occur frequently. Therefore, in legislation and trial practice, the system of apparent agency should be further refined, the identification mechanism of the act of apparent agency should be determined, the standard should be unified, and the act of cognizance should be standardized. At the same time, the management and audit system should be strengthened to avoid the risk.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D920.5;D923.6
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