Who should be responsible for the injuries sustained by the installation workers during the installation of air conditioners for customers?

In July 2021, the weather was hot, Lin went to a shopping mall to buy an air conditioner, and after Lin paid, the shopping mall promised to arrange a special person to install it. Two days later, Min, an air-conditioning installer who claimed to be an air-conditioning installer from an installation company, went to Lin's house to install an air-conditioner and showed his ID to Lin. During the installation of the air conditioner, the safety rope loosened and fell off, causing Min to fall from the building and be seriously injured. Min was hospitalized after being injured, and after being discharged from the hospital, because he could not reach an agreement with the installation company and Li on compensation, Min sued the shopping mall, the installation company and Lin in November 2022, demanding that the three parties compensate him for various losses totaling 160,000 yuan.

　　It was also ascertained that the mall had entered into a service outsourcing agreement with the installation company to outsource all air-conditioning installation operations to the installation company. Min had applied to the Labor Arbitration Commission for arbitration, but the Arbitration Commission rejected his arbitration application on the grounds that the arbitration time limit had expired.

02

Heard by the courts

　　After trial, the court held that in order to determine the subject of responsibility in this case, it is first necessary to clarify the legal relationship between the subjects.

　　1. On the legal relationship between the shopping mall and the installation company

　　Article 770 of the Civil Code of the People's Republic of China stipulates that a contract is a contract in which the contractor completes the work and delivers the work results in accordance with the requirements of the contractor, and the contractor pays remuneration. Article 772 stipulates that the contractor shall complete the main work with its own equipment, technology and labor, unless otherwise agreed by the parties. According to the above provisions, the contract relationship is a legal relationship in which the contractor provides the fixed crops, the contractor delivers the labor results after labor reprocessing, and the contractor pays the processing fee. Its main characteristics are that the contractor's personal and work are independent, and the processing fee is not limited to labor remuneration, but has the nature of business profit.

　　In this case, a service outsourcing agreement was signed between the shopping mall and the installation company for the air-conditioning installation business, and the legal relationship between the two parties should be characterized as a contracting relationship. Article 1193 of the Civil Code of the People's Republic of China stipulates that if the contractor causes damage to a third party or its own damage in the process 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. According to the facts ascertained during the trial, the installation company was a qualified company, that is, the shopping mall was not at fault for the selection in the legal relationship of contracting, so it was not liable for compensation.

　　2. The legal relationship between Lin and Min

　　As the purchaser of the air conditioner, Lin was the buyer of the air conditioner, and the installation of the air conditioner was an ancillary obligation of the shopping mall to perform the sales contract, and Lin did not instruct or help Min during the installation process, that is, Lin was not at fault and should not be liable for compensation. The court rejected Min's claim for compensation from Lin.

　　3. On the legal relationship between the installation company and Min

　　The court held that the employment relationship refers to the employee's acceptance of the employer's command, arrangement, and management for a certain period of time, and the payment of labor services to obtain labor remuneration. Its main characteristics are that the worker is personally dependent, the work is not independent, and the remuneration for labor services is his income. According to the above provisions, combined with the facts ascertained by the court, the relationship between the plaintiff Min and the installation company should be an employment relationship. Based on this, Min should apply to the installation company for work-related injury compensation, but in view of the fact that Min's work-related injury application was rejected because it exceeded the arbitration period, the court finally held that the plaintiff Min could seek relief in accordance with the labor relationship stipulated in Article 1192 of the Civil Code.

　　Article 1192 of the Civil Code of the People's Republic of China stipulates 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 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. In this case, Min was an employee of the defendant installation company and was injured in the installation work, and the installation company should be liable for compensation. However, as an individual with the qualification of aerial work, Min operated improperly during the installation process, resulting in the safety rope loosening and falling off, and he was also at fault, and should bear part of the responsibility for his own losses, and based on the facts of this case, the court finally determined that the installation company was liable for 80% of Min's losses, and the remaining 20% was borne by the plaintiff Min.

03

What the judge said

　　In trial practice, it is easy for people to confuse the difference between a labor contract and a contract of contract, but the legal liabilities corresponding to the two types of contracts are completely different.

　　Let's start with the labor contract, which is an agreement between the two parties that one party will provide labor services to the other party. During the period of service, the party providing the service completes the work according to the instructions; The party receiving the service must not only pay the salary, but also ensure personal safety. If the party providing the labor service suffers personal injury, as long as it is caused by the labor service, it will constitute the liability for the work-related accident, and the employer will be liable for compensation.

　　In a contract of contract, one party is the contractor and the other party is the contractor. In the contract, the contractor purchases the fruits of labor, and is not responsible for the labor process and the safety of the contractor, and the contractor is responsible for it. To put it bluntly, the contract means that you only need to deliver the work results according to the agreement, and it has nothing to do with me as to what method you use to do it or who you hire to do it.

04

Links to legal provisions

　　Article 770 of the Civil Code of the People's Republic of China: A contract is a contract in which the contractor completes the work and delivers the work results in accordance with the requirements of the contractor, and the contractor pays remuneration.

　　The contract includes processing, customization, repair, copying, testing, inspection and other work.

　　Article 772 of the Civil Code of the People's Republic of China: The contractor shall complete the main work with its own equipment, technology and labor, unless otherwise agreed by the parties.

　　If the contractor entrusts the main work contracted by the contractor to a third party to complete, it shall be responsible to the contractor for the results of the work completed by the third party; Without the consent of the contractor, the contractor may also terminate the contract.

　　Article 1192 of the Civil Code of the People's Republic of China: Where a labor relationship is formed between individuals, and the party providing the labor services causes damage to others due to the labor services, the party receiving the labor services shall bear 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 of the Civil Code of the People's Republic of China If the contractor causes damage to a third party or himself in the process 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.

Source: Shandong High Court, Yishui County People's Court of Linyi City, Shandong Province