The Seminar on Subdivisions of Civil Code (Draft). Contract Compilation and Apparent Agency in the Field of Construction Engineering was held successfully.2018/12/28
On December 15th, 2018, the seminar “Subdivisions of Civil Code (Draft). Contract Compilation and Apparent Agency in the Field of Construction Engineering” was held in Hangzhou, Zhejiang Province. The seminar was hosted by the Civil and Commercial Legal Science Research Center of the Renmin University of China and the Zhejiang Lawyers Association, and was help-hosted by Zhejiang Zhenbang Law Firm. Scholars from Renmin University of China, Peking University, Zhejiang University, Wuhan University, judges from Supreme People's Court, Jiangsu High Court, Zhejiang High Court, Hangzhou Intermediate Court, Shaoxing Intermediate Court, Dongguan Intermediate Court, Zhuji Court, and lawyers and construction companies from Zhejiang Province, a total of 90 persons attended the seminar.
The opening ceremony was hosted by Professor Qian Mingxing from Peking University Law School. Professor Yang Lixin from Renmin University of China Law School, Yu Shaochun, President of the First People's Court of Zhejiang Province, Tang Guohua, Vice President of Zhejiang Lawyers Association, and Jiang Zhaokang, Secretary General of Zhejiang Construction Industry Association, delivered speeches respectively.
Unit 1: Keynote Report
The first unit of the seminar was chaired by Professor Yao Hui, director of the Civil and Commercial Legal Science Research Center of Renmin University of China.
Professor Yang Lixin from the Law School of Renmin University of China published a keynote report entitled "Legal Issues on the Renewal of the expiration of Right to Use Residential Buildings". He believes that in the process of compiling the Civil Code, it is recommended that the issues on the renewal of the expiration of right to use residential buildings be clearly defined, and the renewal of the right to use is resolved through tax collection.
Prof. Zhou Jianghong from Zhejiang University Law School published the keynote report entitled “Legislative Proposal for the Period of Exercising Priority of Compensation for Construction Projects and Its Starting Point”. He combined the nature of the priority payment of the project price and proposed to stipulate the period of exercise as one year, and the period starts from the time when the self-invested contractor should pay the project price.
Associate Professor Zhu Hu of the Law School of Renmin University of China published the keynote report entitled “Legislative Process of Contract Compilation in Civil Code”. He explained the question of whether the civil code contract should set up a general rule, and delineated for the establishment part of the famous contract chapters. For the problem of apparent agency, he separately analyze different four situations: the project manager signed the contract for in the name of the company, the project department signed the contract in the name of the company, the project manager signed the contract in his own name, and the project department signed the contract in his own name, and offered solutions.
Judge Pan Junfeng of the High People's Court of Jiangsu Province published a keynote report entitled "Justice Judgment of Apparent Agency in the Construction Sector". He believed that the project manager of the project department should be divided into three types: subordinate type (job behavior), internal contract type, the actual construction type, clearing that the actual construction person is not equal to the project manager. On the appearance of the agency right, we should pay attention to distinguishing the seal of the project department or the material collection chapter, the technical special chapter. The material collection chapter and the technical special chapter can only be used within the scope of the corresponding functions. At the same time, he stated that the Jiangsu High Court's tendentious opinion on the identification of apparent agency: If the purchased materials, leased equipment, and borrowed funds are actually used in the project, it is inclined to confirm that the apparent agency is established.
Unit 2: Keynote speech
The second unit of the meeting was presided over by Judge Wang Linqing of the Supreme People’s Court.
Director Qin Shankui of the Research Office of the Intermediate People's Court of Shaoxing City made a keynote speech entitled "Application of the Apparent Agency Rules in Foreign-related Commercial Cases and Procedural Matters". He pointed out that in the trial of foreign-related contract cases, it should be combined with the trading habits of the parties to determine whether it constitutes an apparent agency, not simply relying on official seals or signatures.
Prof. Ran Keping from Wuhan University School of Law made a keynote speech titled “Apparent Agency and the Risk Attribution of Enterprise organization and Operation”. He analyzed the disagreement and its root cause on the theories related to the falsification and theft of the agency’s credentials, and then pretending to conduct legal act in the name of others. He combined with a series of related cases published by the Supreme People's Court, analyzed that, the legal behavior of the agent by forging or stealing the proxy certificate of others, since the represented guy is not in a more favorable legal position than the third party to the transaction, in principle it can not be considered as apparent agency . Only in exceptional circumstances, when he is at fault and the third person is not in good faith, the person is responsible for the apparent agency.
Unit 3, 4: Keynote speech
The third and fourth units of the conference were presided over by Ding Linyang, a lawyer from Zhejiang Zhenbang Law Firm.
Li Qi, the drafter of "Construction Judicial Interpretation II (Draft for Comment)", gave a speech entitled "Analysis of Disputes over Contracts on Undertaking Construction Projects ". He summarized the common cooperative development real estate disputes in the trial of cases involving disputes over contracts on undertaking construction projects. In the case of invalid construction contract, the payment of the interim payment, whether the management fee needs to be collected, the trial and approval of the black-and-white contract, the main body, object, scope of the repayment priority of price for a construction project and other difficult issues, and analyzed one by one. .
The drafters of the “Supreme People's Court Regulations on The Trial of Civil and Commercial Cases Involving Certain Issues Concerning the Applicable Law of the Apparent Agency (1) (Draft for Comment) ” , and the judge of the Trial Supervisory Chamber of Supreme Court, Li Xiangbo, made a speech entitled "Supreme People's Court：Relevant Issues in Drafting Judicial Interpretation of Apparent Agency” He explained the scope of application of the judicial interpretation in the draft, the status of legal application of the apparent agency, and interpretation on some provisions of the draft.
The closing ceremony was presided over by Associate Professor Zhu Hu of the Law School of Renmin University of China. Professor Yao Hui, Director of the Civil and Commercial Legal Science Research Center of the Renmin University of China, and Li Lemin, Director of Zhejiang Zhenbang Law Firm, delivered speeches respectively. Professor Yao Hui highly recognized the themes and discussions of this seminar, and expressed sincere gratitude to the scholars, judges, lawyers and representatives of construction enterprises who participated in the seminar! He expressed his gratitude to Zhejiang Zhenbang Law Firm for work ensuring the success of the seminar. Director Li Lemin expressed gratitude to the distinguished guests and congratulated on the successful completion of the agenda. The meeting ended with warm applause.
(Editor: KANG Bingguo)