【Case Interpretation】Rent dispute between Hydra Bird Rental Station and New Nanyang Company

【Brief Introduction to the Case】

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On August 17, 2011, the plaintiff Jiutou Bird Leasing Station signed a Material Leasing Contract with the defendant New Nanyang Company, stipulating that New Nanyang Company (Party B) leased steel pipes, fasteners and top brackets from Jiutou Bird Leasing Station (Party A) for the "Shanghai-Chongqing Expressway Xiantao Service Area Project" of New Nanyang Company, and the rent standard was 0.013 yuan per meter per day for steel pipes and 0.0055 yuan per set of fasteners per day. Topset 0.08 yuan per day, rental time from August 17, 2011 to the end of the leased property, since the material lease, the last day of every 30 days to pay the full rent of all leased materials in the first 30 days, extension is paid liquidated damages of 2% of the total value of the rented materials every day, if Party B's rent and leased property are not settled, Party A can claim it anytime and anywhere, without time restrictions, if there is a dispute, the lawsuit is under the jurisdiction of the people's court where Party A is located. At the end of the contract, Party A is stamped with a seal and signed by Zhang Xiaocai; Party B is stamped with the seal of "Hubei New Nanyang Construction Engineering Co., Ltd. Shanghai-Chongqing Expressway Xiantao Service Area Engineering Project Department", and signed by Wang Moumou and Huang Moumou. The place where the contract was signed was stated as "Xiantao Service Area Project Department". After the contract was signed, Wang Moumou, Huang Moumou and others leased 63,900.9 meters of steel pipes, 41,400 sets of fasteners and 2,000 sets of top supports from the plaintiff in the name of the project department, and then returned 41,097.6 meters of steel pipes, 29,109 sets of fasteners and 1,598 sets of top supports (including some materials returned by Qian assigned by the project department of New Nanyang Company), and there were still 22,803.3 meters of steel pipes, 12,291 sets of fasteners and 402 sets of top supports. Wang Moumou, Huang Moumou and others paid a deposit of 60,000 yuan and a rent of 50,000 yuan in the name of the project department, and as of March 11, 2013, the outstanding rent was 325,203.68 yuan. On March 11, 2013, Ninehead Bird Rental Station sued New Nanyang Company, requesting that the defendant New Nanyang Company be ordered to: (1) return to the plaintiff 22,803.3 meters of steel pipes, 12,291 sets of fasteners and 402 sets of top supports; (2) Pay the rent owed as of March 11, 2013 of 325,203.68 yuan, and pay the rent from March 12, 2013 to the date of repayment of lease materials or compensation in accordance with the rent standard stipulated in the Material Lease Contract; (3) Pay liquidated damages of 100,000 yuan. Since New Nanyang Company applied to add Songjian Company, Huang Moumou and Wang Moumou as defendants on the grounds that it subcontracted the project involved in the case to Songjian Company and Songjian Company to Huang Moumou and Wang Moumou, the court added the above-mentioned parties as defendants according to law, and Jiutou Bird Rental Station requested that the defendants be ordered to bear joint and several liability after the court's explanation.

The defendant, New Nanyang Company, argued that the Material Lease Contract submitted by the plaintiff was not the true intention of New Nanyang Company, that New Nanyang Company did not have any power of attorney and no one had sealed it, and that Wang Moumou and Huang Moumou were not legal persons and representatives of New Nanyang Company. Each deposit was paid by Wang, and New Nanyang Company did not know about it, and none of it was transferred from New Nanyang Company's account. The above are all personal acts of the parties concerned and have nothing to do with New Nanyang Company. New Nanyang Company subcontracted the project involved in the case to Songjian Company, and the leased materials were contracted in the unit price of the contract, and Songjian Company subcontracted to Huang Moumou, Wang Moumou and others, so it applied to add Songjian Company, Huang Moumou and Wang Moumou as defendants in this case, bear their legal liabilities, and exempt New Nanyang Company from legal liability.

The defendant Songjian argued that after Songjian Company undertook the project of Xiantao Service Area of New Nanyang Company, it signed a labor subcontract with Huang Moumou, which clearly included the leased materials in the unit price of the labor service, and settled with Huang Moumou under the organization of the Xiantao Supervision Brigade on September 13, 2012, and paid the price, so Songjian Company had nothing to do with the contract involved in the case.

The defendants Huang Moumou and Wang Moumou did not appear in court to answer the lawsuit and did not submit a defense opinion.

【Agent Opinion】

1. The Material Leasing Contract involved in the case was signed between the defendants Wang Moumou and Huang Moumou in the name of the project department of the defendant New Nanyang Company, and was affixed with the special seal of the project department, and it should be determined that the agency acts of Wang and Huang had been authorized by the project department, and the contract was established and effective according to law.

(1) New Nanyang Company is the construction unit of the "Shanghai-Chongqing Expressway Xiantao Service Area Project", and has set up a project department at the construction site to manage matters related to the project on behalf of New Nanyang Company, including signing contracts with relevant units and individuals, and the name of the seal used by the project department is "New Nanyang Company Shanghai-Chongqing Expressway Xiantao Service Area Engineering Project Department Special Seal" (hereinafter referred to as "Project Department Special Seal"). The "Labor General Contracting Construction Contract" dated May 18, 2011 adduced by New Nanyang Company was signed between the project department and the defendant Songjian Company, and was affixed with the special seal of the project department.

The "Material Leasing Contract" involved in the case was signed by Wang Moumou and Huang Moumou in the name of the project department in the name of the project department at the project department office on August 17, 2011, and the "Party B (with official seal)" at the end of the contract was stamped with the "special seal of the project department of the Xiantao Service Area of the Shanghai-Chongqing Expressway of New Nanyang Company", and indicated "place of signing: Xiantao Service Area Project Department". Regarding the seal, New Nanyang Company admitted that its name was consistent with the special seal of its project department, but denied its authenticity, arguing that it was a seal privately engraved by Wang Moumou and Huang Moumou. However, since New Nanyang Company did not apply for appraisal, its defense of "private engraving" cannot be established. The seal affixed to the contract shall be recognized as the special seal used by the project department.

If the contract bears the special seal of the project department of New Nanyang Company, it should be presumed that Wang and Huang have been authorized by the project department, and the contract is established according to law, unless New Nanyang Company can provide sufficient evidence to rebut the presumption. However, New Nanyang Company only argued that the seal was "secretly sealed" by Wang Moumou and Huang Moumou, but did not prove it, and contradicted its "private engraving", so this defense cannot be established.

In November 2012, the project department appointed staff member Qian to return the rented materials to the plaintiff on three occasions, and according to Article 12 of Judicial Interpretation II of the Contract Law, the performance of the contractual obligations by the project department should be regarded as an endorsement of the contract.

New Nanyang Company also cited the "Labor General Contracting Construction Contract" between the project department and Songjian Company, and the "Labor General Contracting Construction Contract" between Songjian Company and Wang Moumou and Huang Moumou, intending to prove that the project department could not have signed the "material lease contract" with the plaintiff. This defence is also untenable. Because it is illegal for New Nanyang Company to subcontract the project layer by layer, especially to unqualified individuals, it will not take the initiative to disclose the internal subcontracting relationship, and the plaintiff was not aware of its internal relationship when it signed the Material Leasing Contract.

New Nanyang Company and Songjian Company also raised the defense that they had settled and paid the project price with Wang Moumou and Huang Moumou and should not pay the plaintiff again. However, since the contractual relationship between the project department and Songjian and the contractual relationship between Songjian and Wang and Huang are internal legal relationships between the parties, it cannot be argued that the plaintiff is not a party to the two subcontracts, so this defense cannot be established.

2. Even if Wang Moumou and Huang Moumou signed the contract with the plaintiff without the authorization of the project department, it still constitutes an apparent agency, the agency act is valid, and the contract is legally binding on New Nanyang Company.

(2) The contract was signed in the project department of New Nanyang Company, and this has been stated in the contract. Wang Moumou and Huang Moumou had an office in the project department, and New Nanyang Company did not disclose the fact of its internal subcontracting in order to evade legal supervision, and when the contract was signed, the plaintiff did not know the internal relationship between New Nanyang Company and Wang Moumou and Huang Moumou, and the project department stamped its special seal on the contract.

Wang Moumou, Huang Moumou and others leased materials 12 times (including 7 times to pay the deposit) and returned the materials four times, all of which were handled in the name of New Nanyang Company, and 16 receipts for receiving and returning materials and seven receipts all stated that the rented unit was New Nanyang Company. The above-mentioned materials were used in the project of New Nanyang Company, and during the more than one year that the plaintiff provided the lease materials to the project, New Nanyang Company never raised an objection, nor did it raise an objection after the plaintiff's appointed lawyer sent a lawyer's letter. The plaintiff had reason to believe that Wang Moumou and Huang Moumou were staff members of the project department, and the contract was the true intention of the project department.

New Nanyang Company arranged for its staff Qian to return the materials three times, and the return slip also stated that the rented unit was New Nanyang Company. New Nanyang Company has no objection to Qian's staff.

Based on the above facts, according to Article 49 of the Contract Law, that is, "if the actor does not have the right of agency, exceeds the right of agency, or concludes a contract in the name of the agent after the termination of the right of agency, and the counterparty has reason to believe that the actor has the right of agency, the act of agency is valid", even if Wang and Huang signed a contract with the plaintiff without the authorization of the project department, the plaintiff has reason to believe that Wang and Huang have the right of agency, and the agency act is valid. In addition, according to Article 12 of Judicial Interpretation II of the Contract Law, New Nanyang Company's arrangement for other staff members to return materials three times shall also be regarded as a posthumous recognition of the contract, and the contract shall be valid.

3. The plaintiff fulfilled its obligation to provide the leased property in accordance with the agreement, while New Nanyang Company and the other defendants failed to fully perform the corresponding obligations and should bear the liability for breach of contract.

(Partial contents omitted)

Since New Nanyang Company subcontracted the project layer by layer, the defendants were actually co-tenants and users of the plaintiff's materials, and should be jointly and severally liable for the debts under the lease contract in accordance with Article 87 of the General Principles of Civil Law.

【Verdict】

The court of first instance ruled in favor of most of the plaintiff's claims, mainly including: First, the defendants New Nanyang Company, Huang Moumou and Wang Moumou returned 22,803.3 meters of steel pipes, 12,291 sets of fasteners and 402 sets of top supports to the plaintiff Jiutou Bird Rental Station, and after the above materials were repaid, the plaintiff Yichang City Nine-headed Bird Fastener Rental Station returned the deposit of 60,000 yuan. Second, the defendants New Nanyang Company, Huang Moumou and Wang Moumou paid the plaintiff Jiutou Bird Leasing Station the rent owed by 325,203.68 yuan before March 11, 2013, and paid the rent from March 12, 2013 to the date of repayment of the lease materials or payment of compensation according to the standard of 0.013 yuan / (meter · day) for steel pipes, 0.0055 yuan / (set · day) for fasteners, and 0.08 yuan / (set · day) for top support. Third, the defendants New Nanyang Company, Huang Moumou and Wang Moumou paid the plaintiff Nine-headed Bird liquidated damages calculated at the bank's benchmark interest rate for the same period from April 1, 2013 to the effective date of this judgment based on 325,203.68 yuan.

【Judgment Documents】

The court held that the focus of the dispute in this case was whether the Material Lease Contract in question was valid and which defendant should bear the corresponding liabilities under the contract. New Nanyang Company undertook the construction of the Shanghai-Chongqing Expressway Xiantao Service Area Project, set up a project department on site, and engraved the special seal of the project department. The contract was signed in the project department of New Nanyang Company, and Wang Moumou and Huang Moumou also signed the contract with the plaintiff in the name of the project department and not in their personal name, and the contract was also affixed with the special seal of the project department, and the plaintiff had reason to believe that Wang Moumou and Huang Moumou had the right to sign the contract with the plaintiff on behalf of New Nanyang Company. The leased property provided by the plaintiff was actually used at the site of the project undertaken by New Nanyang Company, which was also admitted by New Nanyang Company during the trial; Between October 11, 2011 and April 25, 2012, Wang Moumou, Huang Moumou and Wen Jianxin extracted leased property from the plaintiff for the project twelve times in the name of New Nanyang Company, and New Nanyang Company never raised an objection. Accordingly, the plaintiff had more reason to believe that Wang Moumou and Huang Moumou had the right to sign the contract with the plaintiff on behalf of New Nanyang Company. In November 2012, New Nanyang Company assigned staff member Qian to return part of the leased property to the plaintiff in three installments. Even if Huang Moumou and Wang Moumou really did not have the right to sign the contract involved in the case on behalf of New Nanyang Company, according to Article 12 of the Interpretation (II) of the Supreme People's Court on the Application of <中华人民共和国合同法>Several Issues, "if there is no right agent to conclude a contract in the name of the agent, and the agent has already begun to perform the contractual obligations, it shall be deemed to have recognized the contract", it should be deemed that New Nanyang Company has posthumously recognized the contract. The plaintiff also had reason to believe that Huang Moumou and Wang Moumou had the right to sign the contract in question on behalf of New Nanyang Company. In summary, according to Article 49 of the Contract Law of the People's Republic of China, "if the actor does not have the right of agency, exceeds the right of agency, or concludes a contract in the name of the agent after the termination of the right of agency, and the counterparty has reason to believe that the actor has the right of agency, the act of agency is valid", the agency act of Huang Moumou and Wang Moumou should be deemed valid, and New Nanyang Company should bear the corresponding responsibilities under the contract. New Nanyang Company argued that it had subcontracted the construction project to the defendant Songjian Company, which in turn subcontracted the project to Huang Moumou, Wang Moumou and others, so as to claim that it should be exempted from liability, but because the contract in question was signed in the name of the project department of New Nanyang Company and affixed with the seal of the project department, and New Nanyang Company did not provide evidence to prove that the plaintiff was aware of the layers of subcontracting or subcontracting relationships between the defendants when signing the contract, the subcontracting or subcontracting relationship between the defendants could not be sued against the antigen, and New Nanyang Company could not be exempted from liability. In view of the fact that New Nanyang Company has applied to add Huang Moumou and Wang Moumou as co-defendants in this case, and has provided evidence to prove that Huang Moumou and Wang Moumou are the actual users of the leased materials, Huang Moumou and Wang Moumou should bear civil liability for the debts under the contract. After actually assuming responsibility, New Nanyang Company may recover their losses from Huang and Wang in accordance with relevant regulations.

【Case Analysis】

I. In this case, how should the validity of the Material Lease Contract involved be determined?

(1) The first paragraph of Article 48 of the Contract Law of the People's Republic of China stipulates: "A contract concluded in the name of the agent after the actor has no right of agency, exceeds the right of agency, or is concluded in the name of the agent after the termination of the right of agency, and without the posthumous recognition of the agent, it is not effective against the agent, and the actor shall bear responsibility." ”

According to this provision, if it cannot be proved that Huang Moumou and Wang Moumou have the right of agency, or it cannot be proved that New Nanyang Company or its project department posthumously recognized the Material Leasing Contract involved in the case, the contract will be deemed to be ineffective against New Nanyang Company and only the perpetrators Wang Moumou and Huang Moumou shall be liable. Since Wang Moumou and Huang Moumou were individual contract foremen, and they lost contact because they could not bear the loss before the completion of the project in question, if they only judged Wang Moumou and Huang Moumou to bear responsibility, it would obviously be unfavorable to the plaintiff. According to the Civil Procedure Law and the Rules of Evidence of Civil Procedure, the burden of proof for Huang Moumou and Wang Moumou to have the right of agency, or for New Nanyang Company or its project department to recognize the lease contract involved in the case, shall be borne by the plaintiff. If the plaintiff fails to provide sufficient evidence, he will bear the consequences. In this case, the two pieces of evidence related to this are: the project department of New Nanyang Company affixed its seal to the contract; The project department of New Nanyang Company appointed its staff Qian to return the leased materials. However, there are different perceptions of whether the above evidence is sufficient. In fact, after the case was filed in 2013, the court did not find that Huang Moumou and Wang Moumou had the right of agency, nor did it find that New Nanyang Company or its project department recognized the contract in question. After the plaintiff appealed, the second-instance ruling remanded for retrial, and after the retrial, the first-instance judgment of the court did not directly find that Huang Moumou and Wang Moumou had the right of agency, but held that the appointment of Qian Moumou, a staff member of New Nanyang Company, to return the leased materials was an act of posthumous recognition.

At the same time, the plaintiff claimed that even if Huang Moumou and Wang Moumou did not have the right of agency, their agency acts met the requirements of apparent agency and were still valid. That is to say, it is claimed that the exception provided for in the first paragraph of Article 48 of the Contract Law of the People's Republic of China - Article 49 of the Contract Law of the People's Republic of China applies: "If the actor does not have the right of agency, exceeds the right of agency, or concludes a contract in the name of the agent after the termination of the right of agency, and the counterparty has reason to believe that the actor has the right of agency, the act of agency is valid." ”

(2) The constituent elements of apparent agency are divided into two aspects: objective elements and subjective elements.

Objectively, the agent's act of not having the right to act as an agent forms the appearance of having agency power; Subjectively, the counterparty is required to believe in good faith and without fault that the actor has the right of agency. Where the counterparty to a contract claims that it constitutes an apparent agent, it shall bear the burden of proof, not only shall it provide evidence to prove that the agency act has objective apparent formal elements such as contracts, official seals, seals, etc., which has the right to act as an agent, but also shall prove that it believes in good faith and without negligence that the actor has the right of agency. When determining whether the counterparty to a contract is subjectively bona fide and without negligence, the people's court shall comprehensively determine whether the counterparty has fulfilled its duty of reasonable care in combination with various factors in the process of conclusion and performance of the contract, in addition to considering various factors such as the time of conclusion of the contract, in whose name it was signed, whether it is stamped with the relevant seal and the authenticity of the seal, the delivery method and location of the subject matter, the materials purchased, the equipment leased, the purpose of the borrowed money, whether the construction unit is aware of the project manager's behavior, whether it participates in the performance of the contract, and other factors. Make comprehensive analysis and judgment.

After remanding the case for retrial, the court made a comprehensive analysis and judgment of the circumstances such as the place where the contract was concluded was located in the project department of New Nanyang Company, the seal of the project department was affixed, the subject matter was used for the project, New Nanyang Company knew that Huang Moumou and Wang Moumou's agency acts did not object, and arranged staff to assist in returning some materials, and found that Huang Moumou and Wang Moumou's agency acts constituted apparent agency, thereby supporting the plaintiff's claim against New Nanyang Company.

【Conclusion and Suggestions】

The 2009 Guiding Opinions of the Supreme People's Court on Several Issues Concerning the Trial of Civil and Commercial Contract Dispute Cases under the Current Situation has already pointed out: "At present, in major national projects and contracting and leasing industries, which have been significantly affected by the impact of the global financial crisis and changes in the domestic macroeconomic situation, due to the use of subcontracting, subcontracting and subleasing, a large number of cases have occurred in which contracts are signed or actually performed in the name of units, departments, project managers and even individuals." and due to the issue of contract subject and validity determination, the apparent agency dispute case arises. In this regard, the people's court shall correctly apply the provisions of Article 49 of the Contract Law on the apparent agency system, strictly determine the apparent agency behavior", and give guidance on the analysis and judgment method of apparent agency.

In judicial practice, a large number of cases have also emerged, for construction enterprises, to control relevant business risks, on the one hand, it is necessary to reduce the behavior of affiliated and lending qualifications, on the other hand, it is necessary to strengthen management, supervise the behavior of project managers or affiliated persons or borrowed qualifications, and do not expect internal subcontracting contracts to oppose the counterparty. For the leasing station and other counterparties, it is necessary to control the relevant business risks, and pay attention to whether the authority of the contracting entity is available, whether the form of the contract is complete and standardized, and whether the performance of the contract is in accordance with common sense, so as to avoid being unable to claim rights from construction enterprises with relatively strong performance ability in the event of disputes.

Relevant legal knowledge:

What are the criminal penalties for defamation

According to the law, the criminal punishment for the crime of defamation is: if the perpetrator fabricates facts to slander others, and the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, surveillance, or deprivation of political rights. Objectively, this crime is manifested as the use of violence or other methods to openly insult others or fabricate facts to slander others, and the circumstances are serious.

Legal basis:

Article 246 of the Criminal Law: Where violence or other methods are used to openly insult others or fabricate facts to slander others, and the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, surveillance, or deprivation of political rights. The crimes mentioned in the preceding paragraph shall be dealt with only if they are told, except for those that seriously endanger social order and national interests. Where the victims carry out the conduct provided for in paragraph 1 through information networks, and the victims tell the people's courts, but it is truly difficult to provide evidence, the people's courts may request that the public security organs provide assistance.