Is the owner responsible for the accidental fall of the air conditioner

Is the owner responsible for the accidental fall of the air conditioner

A certain car sales company found the defendant Gao to repair it because the air conditioner in the 4S shop it operated failed. Because Gao couldn't complete the maintenance work alone, he invited his coworker Chen to work together. The two parties agreed that the construction period was one day, and after the air-conditioning maintenance was qualified, an automobile sales company paid 3,000 yuan to the plaintiffs Chen and Gao for maintenance. On July 22, 2017, Chen and Gao brought their own tools and equipment to a 4S shop to repair the air conditioner. An automobile sales company did not arrange and direct air conditioning maintenance on site. The plaintiff, Chen, fell from the ceiling of the second floor of the 4S shop and was injured while repairing the air conditioner. At the time of the accident, the plaintiff Chen did not wear safety equipment. Later, a car sales company and Gao sent Chen to the hospital for 45 days. Because the two parties failed to reach an agreement on compensation matters, Chen appealed to the court to order a car sales company and Gao to jointly compensate their medical expenses and follow-up treatment expenses, disability compensation, and mental damage compensation soothing money. , A total of 698224 yuan.

　　【Divergence】

　　 In this case, Chen accidentally fell and was injured while installing the air conditioner. Is the owner's automobile sales company responsible? In this regard, there are the following different opinions:

　　 The first opinion is that Chen was instructed by a certain car sales company to perform air-conditioning maintenance, and the certain car sales company paid labor compensation, and the two parties formed an employment relationship. Chen was injured in completing the work assigned by his employer, and was injured in the completion of the work, and a certain car sales company should be liable for compensation.

The second opinion is that Chen has been engaged in air-conditioning installation and maintenance for a long time, and has the necessary technology, equipment and skills for air-conditioning installation and maintenance, and is responsible for the obligation to deliver work results to a car sales company, rather than simply providing labor services . The relationship between a certain car sales company and Chen should be a contractual relationship. In the case that a certain car sales company does not order or instruct the air conditioner to be faulty, Chen should be responsible for the consequences of accidental fall and injury while installing the air conditioner.

　　【Analysis】

　　 The author agrees with the second opinion, that is, the relationship between a certain car sales company and Chen should be a contractual relationship, and Chen should be responsible for the consequences of accidental fall and injury while installing the air conditioner.

　　 The focus of the dispute in this case is that Chen was injured when he accidentally fell while installing the air conditioner. Is the owner’s automobile sales company responsible? Is the relationship between a certain car sales company and Chen a contract or an employment relationship? If the two parties are in a contractual relationship, Chen as the contractor shall bear his own risk; if it is an employment relationship, according to the relevant judicial interpretation of the Supreme Court, Chen is injured and disabled during the work as an employee, and the relevant losses shall be borne by the employer.

From a conceptual point of view, an employment relationship means that, according to the agreement of the parties, within a certain period of time, the employed person engages in labor activities within the scope of the employer’s authorization or instructions, and the employee is paid by the employee. The rights and obligations of labor activities under control. The contract relationship refers to the right and obligation relationship in which the contractor completes the work according to the requestor's requirements, delivers the labor results, and the contractor pays remuneration.

　　 The two kinds of relations have the same in the form of expression of providing labor to obtain remuneration, but there are essential differences, which can be analyzed from the following four aspects:

　　 First of all, from the perspective of the subject of the contract. The employment relationship is an ordinary civil subject, and generally has no special requirements for employees' qualifications or equipment; while the contracting relationship is a commercial subject, so the contractor is generally required to have the necessary technology, equipment and skills to complete the contracted work.

　　Secondly, from the subject and nature of the contract. In the employment relationship, employees provide labor services when they work, and employees usually use tools or equipment provided by the employer when performing tasks assigned by the employer, and do not prepare tools or equipment themselves. What is delivered in the contracting relationship is the result of the work. Although the contracting work must also provide labor, what the orderer needs is not the labor provided by the contractor itself, but the result of the completion of the work. Since the contractor independently completes the tasks assigned by the orderer, it usually uses its own tools and equipment.

　　 Again, from the perspective of the reward. The employment relationship is mostly regular payment of wages, reflecting the price of labor, and labor compensation is relatively lower. The contractor bears a higher risk, so the remuneration obtained is generally higher than that of the employee, and most of it is a one-time payment after the performance is completed, reflecting the value of labor results. When the parties have no agreement on the remuneration or the agreement is not clear, the general value of the work results of the same type should be delivered to the work results at the time, rather than based on the remuneration of the same type of labor.

　　 Finally, from the perspective of personal attachment. In the employment relationship, there is a management and management relationship between the employer and the employee; the contractor and the contractor of the contract relationship are in a contractual relationship, and the two parties have equal status, and there is no management and management relationship.

　　 As far as this case is concerned, first of all, Chen has been engaged in the installation and maintenance of air-conditioning for a long time, and he has the necessary technology, equipment and skills for the installation and maintenance of air-conditioning, and meets the main requirements of the contracting relationship. Second, analyze the content agreed by both parties. The two parties agreed: the construction period is one day, and the maintenance fee is 3000 yuan after the air-conditioning repair is qualified. Chen must be responsible for the quality and progress of his completed work. The condition of payment is the acceptance of engineering experience. This also shows that Chen is responsible for delivering the work results, not simply providing service. The maintenance fee of 3000 yuan, Chen and Gao equivalent to 1500/yuan per day, belong to the relationship of immediate settlement of debts, and the remuneration obtained by Chen is not only for providing labor services, but also includes the equipment, skills, and commitments provided by him. The value embodied by a series of factors such as risk. Third, Chen independently completed the air-conditioning installation and maintenance tasks assigned by a certain automobile sales company, using his own tools and equipment, and did not use or request a certain automobile sales company to provide tools and equipment. Finally, there is no relationship between management and being managed between a certain car sales company and Chen. Chen only needs to complete the maintenance tasks and is not subject to the management regulations of a certain car sales company.

　　 According to the above judgment, the relationship between a certain car sales company and Chen should be a contract, not an employment relationship. Article 10 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases stipulates: “If the contractor causes its own damage in the process of completing the work, the ordering party shall not be liable for compensation. However, the ordering party shall not If there is a negligence in the instructions or appointment, the corresponding compensation liability shall be borne". Article 11 stipulates: “The employer shall be liable for compensation if an employee suffers personal injury in engaging in employment activities." These two articles have different provisions on the responsibility of the contracting relationship and the employment relationship. In view of the fact that a certain automobile sales company and Chen's The relationship shall be a contractual relationship, and the provisions of Article 10 shall apply.

　　 At the same time, a certain car sales company contacted Gao, who was in charge of air-conditioning and other related businesses, to repair the air-conditioning. The worker Gao brought with him, the plaintiff, Chen, worked together to repair the air-conditioning. In the process of air-conditioning maintenance, a certain automobile sales company did not conduct instructions on the spot. The specific matters of the air-conditioning maintenance were controlled and operated by the contractors, namely the plaintiff Chen and the defendant Gao. Therefore, as the contractor, Chen is responsible for the consequences of his accidental fall and injury while installing the air conditioner.