[Public Lawyer's Statement]
It is very common for families to renovate their houses, but the safety of decoration is a major issue that cannot be ignored. In recent years, it has been common to hear about incidents of workers falling from heights during home renovation, resulting in casualties. So, at this time, is the householder liable for the death or injury of the renovation worker?
Case 1:
The head of the household directly hires workers to carry out the renovation work
Pan Moumou built a new two-story building, and the decoration needed to transport materials to the second floor. Pan Moumou found Yang Moumou, who opened a decoration company, and Yang Moumou contacted Mao Moukuan to hoist the second floor of the material, and Mao Moukuan found Mao Moukuan to carry out hoisting operations with him. On September 12, 2022, Mao, who had a history of hypertension, continued to carry out hoisting operations for Pan Moumou in the afternoon after drinking at noon, and was injured due to an operation error, falling from the second floor and dying after being sent to the hospital for emergency treatment for nearly two months. Mao's family sued Pan, Yang, Mao and others in court, demanding payment of nearly 1.5 million yuan for Mao's treatment and death-related expenses. The court of first instance found that Mao Moukuan, Mao, Pan Moumou, and Yang Moumou had a contractual relationship, and that Mao had not fulfilled sufficient safety care obligations, and that he was at fault for the damage he had suffered, and that he should bear 70% of the responsibility; All parties appealed against the first-instance judgment. After the trial, the court of second instance held that Mao Moumou bore 60% of the liability, Mao Moukuan and Mao Moumou only established a contracting relationship with Pan Moumou, and Pan Moumou, as the customizer, still bear 10% of the compensation liability. Mao Moukuan, as a partner of Mao's hoisting operation, failed to fulfill his safety and security obligations, and as one of the beneficiaries of the partnership, Mao's death should be compensated to his family, and he should be sentenced to bear 30% of the responsibility. Although Yang Moumou contacted Mao Moukuan to hoist materials for Pan Moumou, he was only the contact person who helped in the middle, and did not benefit from it, and did not form a contractual cooperative relationship, so Yang Moumou was not held responsible.
In this case, the head of the household and the decoration worker were in a direct contracting relationship, and the head of the household, as the contractor, failed to fulfill the safety supervision obligations for the appointment of personnel and safe construction during the construction process, and failed to eliminate the potential safety hazards in a timely manner, and should bear certain fault liability for the fall and death of the contractor.
Case 2:
The head of the household is looking for an unqualified store for decoration
Due to the decoration needs of his own unit, Zhong Moumou found Gong Moumou, the husband of the owner of an aluminum alloy store, and agreed that the store would contract the production and installation of aluminum alloy doors and windows in his pre-decorated unit, and the store would be responsible for the safety construction. On February 21, 2017, in the process of dismantling the original guardrail of the balcony for Zhong's house, Gong Moumou did not take safety protection measures, accidentally fell from the third floor, and died after rescue. Gong's family took Zhong to court, demanding payment of more than 1 million yuan for Gong's medical treatment and death. During the trial, Zhong Moumou believed that his decoration business was contracted to an aluminum alloy store, and the aluminum alloy store should bear the responsibility for safety. The court of first instance held that Gong Moumou's decoration for Zhong Moumou was a contract relationship, and Gong Moumou knew that he did not have the relevant qualifications to engage in residential interior decoration, but still undertook business, and did not take safety measures during the construction process, and should bear the main responsibility for the accident, and Zhong Moumou did not choose a decoration and decoration enterprise with the corresponding qualification level for residential interior decoration, and handed over the project to Gong Moumou, who did not have the corresponding qualifications, for construction, and was negligent in the selection and should bear the corresponding liability for compensation. The judgment was that Zhong Moumou should bear 30% of the liability for compensation, and Gong Moumou himself should bear 70% of the liability. Dissatisfied, Zhong appealed, and the court of second instance upheld the judgment of the first instance.
In this case, although the owner of the household claimed that he handed over the decoration business to the aluminum alloy store and agreed that the store was responsible for the responsibility for safe construction, he did not sign a written contract, especially that the aluminum alloy store and Gong Moumou himself did not have the qualification for interior decoration and decoration, nor did they have a permit for aerial work, and the head of the household was liable for negligence in selection and assumed certain fault liability for the fall and death of the contractor.
Case 3:
The head of the household signs a contract with a qualified decoration company for decoration
On September 4, 2022, Chen Moumou and Ji Moumou, the legal representative of Company A, signed the "Family Room Decoration Project Construction Contract", agreeing that Company A would decorate Chen's house in the form of contracted labor and materials. On April 1, 2023, Company A organized temporarily hired carpenters Li and Guan Moumou to carry out curtain box and kitchen rectification construction in the house involved in the case, and Guan Moumou, who was alone in the curtain box rectification operation, fell from the lighting well on the first floor to the basement ground, and died after rescue. Guan Moumou's family sued Company A, Ji Moumou and Chen Moumou in court, demanding that Guan Moumou's medical treatment and death-related expenses total more than 1 million yuan. After the trial, the court held that Guan Moumou and Company A were in an employment relationship, and that Guan Moumou, as a carpenter, failed to perform the necessary duty of care when working alone, did not have a strong sense of safety, fell from the lighting wellhead, and was at fault for the occurrence of the accident, and should bear part of the responsibility. Company A failed to establish, improve and implement the safety production responsibility system for all employees of the unit, failed to carry out safety production education and training for Guan Moumou in accordance with the regulations, failed to inform the carpenters who participated in the operation on the same day of the risk factors and preventive measures existing in the workplace and the workplace, and did not set up warning signs at the lighting well. It was decided that Company A should bear 80% of the liability for compensation, Ji Moumou and Company A should bear joint and several liability, Guan Moumou should bear 20% of the liability, and Chen Moumou was not at fault and was not liable. Dissatisfied, Company A and Ji Moumou appealed, and the court of second instance upheld the judgment of first instance.
In this case, the head of the household signed a written decoration contract with a company with interior decoration qualifications, and he was not liable for the negligence of the selection, and was not liable for the fall and death of the carpenter hired by Company A during the decoration operation.
Analysis and interpretation of the law by public lawyers:
The mainland has a series of laws and regulations on the safe operation of decoration and decoration. Article 11 of the Work Safety Law stipulates that "production and business operation entities must implement the national or industry standards formulated in accordance with the law to ensure safe production." The first paragraph of Article 27 stipulates that "special operations personnel of production and business operation units must undergo special safety operation training and obtain corresponding qualifications in accordance with relevant national regulations before they can take up their posts." According to the national standard GB/T3608-2008 "Classification of Work at Height", "all operations carried out at a height of 2 meters (including 2 meters) from the fall height datum are called work at height". It can be seen that in home decoration, all the work height of 2 meters and above belongs to high-altitude operations, and its operators must have the corresponding qualifications to work. The "Regulations on the Administration of Work Safety Permits for Construction Enterprises" clearly states that "the state implements a safety production license system for construction enterprises. Construction enterprises shall not engage in construction activities without obtaining a safety production license. "The construction companies here include decoration companies. In other words, the decoration company must obtain the "Safety Production License" in order to engage in the decoration business.
The Ministry of Construction's "Measures for the Administration of Residential Interior Decoration" further emphasizes that "residential interior decoration shall ensure the quality and safety of the project and meet the mandatory standards for project construction." "For enterprises undertaking residential decoration and decoration, it is required that "they must be subject to the qualification examination of the construction administrative department, obtain the corresponding construction enterprise qualification certificate, and contract the project within the scope of their qualification level." "For the selection and employment of decoration enterprises by the head of households, it is required that "decoration enterprises with corresponding qualification levels should be selected." ”
The Tort Liability Law clarifies that if a labor relationship is formed between individuals, and the party providing the service causes damage to others due to the service, the party receiving the service shall bear the tort liability. If the party providing the service suffers damage due to the service, it shall bear the corresponding responsibility according to the fault of both parties. If the party providing the service is at fault, the liability of the party receiving the service may be reduced. The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases (Fa Shi [2003] No. 20) stipulates that if the contractor causes damage to a third party or causes its own damage in the course of completing the work, the contractor shall not be liable for compensation. However, if the maker is negligent in the ordering, instruction or selection, he shall bear the corresponding liability for compensation. The employer shall be liable for compensation for personal injuries suffered by employees in the course of employment activities. If an employee suffers personal injury due to a work safety accident in the course of employment activities, and the employer or subcontractor knows or should know that the employer receiving the contract or subcontract business does not have the corresponding qualifications or conditions for safe production, it shall be jointly and severally liable with the employer for compensation.
The Tort Liability Law was repealed after the Civil Code came into effect on January 1, 2021, and the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases was amended in 2020 and 2022 to adapt to the formal implementation of the Civil Code. Accordingly, the Civil Code provides for relevant circumstances. According to the provisions of the Civil Code, if the head of the household finds workers to carry out the decoration work by himself, it is a labor relationship between individuals, and if the party providing the labor service causes damage to others due to the labor service, the party receiving the labor service shall bear the tort liability. After the party receiving the service bears tort liability, it may recover compensation from the party providing the service intentionally or with gross negligence. If the party providing the service suffers damage due to the service, it shall bear the corresponding liability according to the fault of both parties. During the period of providing labor services, if the third party's behavior causes damage to the party providing the services, the party providing the labor services has the right to request the third party to bear tort liability, and also has the right to request the party receiving the services to compensate. After receiving compensation from the labor party, it may seek compensation from a third party. If the head of the household signs a formal contract with the company for decoration, the decoration company and the employer have a contractual relationship, and the employer does not bear tort liability if the contractor causes damage to a third party or its own damage in the process of completing the work. However, if the head of the household is at fault for the ordering, instruction or selection, he or she still needs to bear the corresponding fault liability.
To put it simply, the head of the household finds workers to carry out decoration operations, and they must ensure the safety of the working environment and work process, otherwise the safety accident of the worker's fall and casualty will be borne by the head of the household, and if the worker is at fault, the responsibility of the head of the household can be reduced, and if there is a third party responsibility, it can be recovered from the third party. If the head of the household finds a decoration company to carry out the decoration operation, and a safety accident occurs in which a worker falls or dies, the decoration company shall bear the liability for compensation, but if the head of the household chooses a company that does not meet the relevant conditions, the head of the household has the fault of selection and needs to bear the corresponding fault liability.
Life is above all else, and safety is more important than Mount Tai. The householder attaches great importance to safety issues in the decoration, and it is necessary to resolutely prevent the occurrence of safety accidents such as injuries and injuries caused by falls from heights. At the same time, it is also important to have an in-depth understanding of the provisions of relevant laws and regulations and avoid relevant legal risks. In accordance with the provisions of relevant laws and regulations, public lawyers make the following suggestions to the heads of households who are going to carry out home renovations:
The first is to sign a written contract with a qualified decoration company. Households mainly carry out interior decoration, as far as possible to find a formal and qualified decoration company, to pay special attention to whether the business scope of its business license includes the corresponding decoration business, whether the company has a "safety production license", the business license is valid and contains the corresponding business, the company obtains the "safety production license", in order to sign a written decoration contract with it, the contract should clearly stipulate that the safety responsibility is borne by the decoration company. Only by doing this can we fulfill the responsibility of selecting and appointing the head of the household, and avoid the safety responsibility when safety accidents such as falling from height and casualties occur during the decoration.
The second is to directly find workers to decorate, and especially strengthen safety and security work and safety reminders. Some householders are reluctant to find a decoration company for the sake of saving costs, controlling the design style and other factors, or their decoration business is very small, and they think that it is not necessary to find a decoration company, so they directly find workers to carry out decoration operations. Then, at this time, the safety responsibility of the head of the household is greater. The household mainly organizes workers to inspect, understand and familiarize themselves with the environmental safety of decoration and decoration, identify places with safety risks, and remind workers to operate in strict accordance with safety operating procedures, and fulfill the obligation of safety measures and safety reminders to workers. For some operations that may fall from height, it is necessary to find workers with aerial work certificates, and take necessary safety measures to ensure the safety of operators. In the event of a safety story, the injured should be sent to the hospital as soon as possible, fulfill the obligation of medical assistance, and truthfully report the situation to the relevant departments.
Relevant laws and regulations:
Work Safety Law of the People's Republic of China
Article 11 production and business operation entities must implement the national standards or industry standards formulated in accordance with the law to ensure safe production.
Article 20 Production and business operation entities shall meet the conditions for safe production stipulated in this Law and relevant laws, administrative regulations and national standards or industry standards;
Article 30 The special operations personnel of the production and business operation units must undergo special safety operation training and obtain the corresponding qualifications in accordance with the relevant provisions of the State before they can take up their posts.
Civil Code of the People's Republic of China
Article 1165:Where the perpetrator infringes upon the civil rights and interests of others due to fault and causes harm, they shall bear tort liability.
Where it is presumed that the actor is at fault in accordance with the provisions of law, and he cannot prove that he is not at fault, he shall bear tort liability.
Article 1173:Where the infringed party is at fault for the occurrence or expansion of the same harm, the infringer's liability may be reduced.
Article 1174:Where the harm is intentionally caused by the victim, the perpetrator is not liable.
Article 1175:Where the harm is caused by a third party, the third party shall bear tort liability.
Article 1192:Where a labor relationship is formed between individuals, and the party providing the service causes harm to others as a result of the service, the party receiving the service bears tort liability. After the party receiving the service bears tort liability, it may recover compensation from the party providing the service intentionally or with gross negligence. If the party providing the service suffers damage due to the service, it shall bear the corresponding liability according to the fault of both parties.
During the period of providing labor services, if the third party's behavior causes damage to the party providing the services, the party providing the labor services has the right to request the third party to bear tort liability, and also has the right to request the party receiving the services to compensate. After receiving compensation from the labor party, it may seek compensation from a third party.
Article 1193: Where the contractor causes damage to a third party or to himself in the course of completing the work, the contractor shall not bear tort liability. However, if the person making the order is at fault for the ordering, instruction or selection, he shall bear the corresponding responsibility.
Ministry of Construction of the People's Republic of China "Administrative Measures for Residential Interior Decoration and Decoration"
Article 3 Residential interior decoration shall ensure the quality and safety of the project, in line with the mandatory standards for engineering construction.
22nd to undertake residential interior decoration projects of decoration enterprises, must be subject to the qualification examination of the competent administrative departments of construction, obtain the corresponding construction enterprise qualification certificate, and within the scope of its qualification level to contract the project.
Article 23 If the decorator entrusts the enterprise to undertake its decoration project, it shall choose a decoration enterprise with the corresponding qualification level.
36th decorator in violation of the provisions of these measures, the residential interior decoration project is entrusted to enterprises that do not have the corresponding qualification level, the urban real estate administrative departments shall be ordered to correct, fined not less than 500 Yuan but not more than 1,000 Yuan.
Article 41 Decoration and decoration enterprises in violation of the relevant national safety production regulations and safety production technical regulations, not in accordance with the provisions to take the necessary safety protection and fire protection measures, unauthorized use of open flame operations and welding operations, or the construction of safety accidents do not take measures to eliminate the hidden dangers, by the construction administrative departments ordered to correct, and imposed a fine of not less than 1,000 yuan but not more than 10,000 yuan; if the circumstances are serious, ordered to suspend business for rectification, and imposed a fine of not less than 10,000 yuan but not more than 30,000 yuan; caused by major safety accidents, reduce the qualification level or revoke the qualification certificate。
(Meizhou Prison He Lufeng)