张家港讨债公司介绍善用远程视频调解 高效化解涉企纠纷

近日，上海市宝山泛亚国际商事调解中心又成功化解了一起钢板桩公司与工程公司之间的建筑设备租赁合同纠纷，本次调解采取了视频调解与电子签名相结合的线上方式签署调解协议，并通过法院司法确认取得了具有强制执行力的调确民事裁定书，满足了当事人灵活、高效、低成本解决纠纷的法律需求。

  Recently,Baoshan Pan Asia International Commercial Mediation Center of Shanghai successfully resolved another construction equipment lease contract dispute between a steel sheet pile company and an engineering company. This mediation adopted an online method combining video mediation and electronic signature to sign the mediation agreement, and obtained a compulsory enforcement civil ruling through judicial confirmation by the court, meeting the legal needs of the parties to resolve disputes flexibly, efficiently and at low cost.

案情简介

 Brief introduction of the case

2021年3月20日，某建设公司将某工程施工分包给B工程公司（以下简称“B公司”），B公司又与A公司签订《钢板桩租赁合同》，刘某在合同担保条款中签字按印确认。合同签订后，原告已按约履行合同义务，A公司与B公司共同确认累计结算值3523999.80元。然B公司仅支付1978900.00元，仍欠付A公司1,545,099.80元。故A公司起诉至管辖法院——上海市宝山区人民法院（以下简称“法院”），要求B公司支付1,545,099.80元及违约利息，担保人刘某对上述义务承担连带责任，某建设公司应当在欠付工程款范围内承担支付责任。法院受理该案件后委托上海市宝山泛亚国际商事调解中心进行调解，在征得双方当事人同意后，调解员展开调解工作。

On March 20, 2021, a construction company subcontracted a certain project to B Engineering Company (hereinafter referred to as "B Company"), and B Company signed the "Steel Sheet Pile Lease Contract" with A Company, and Liu signed and stamped the contract guarantee clause to confirm. After the contract was signed, the plaintiff had fulfilled its contractual obligations as agreed, and A Company and B Company jointly confirmed the cumulative settlement value of 3,523,999.80 CNY. However, B Company only paid 1,978,900.00 CNY and still owed A Company 1,545,099.80 CNY. Therefore, Company A filed a lawsuit with the jurisdiction court, Shanghai Baoshan District People's Court (hereinafter referred to as the "Court"), requiring Company B to pay 1,545,099.80 CNY and default interest. The guarantor Liu shall bear joint and several liability for the above obligations, and a construction company shall bear the payment responsibility within the scope of the unpaid project funds. After accepting the case, the court entrusted Baoshan Pan Asia International Commercial Mediation Center of Shanghai to mediate. After obtaining the consent of both parties, the mediator started the mediation work.

调解过程

Process of the mediation

调解员第一时间与当事人取得联系，并采取“背对背”的沟通方式，分别了解双方的诉求及矛盾点，并查阅了相关案件证据材料。

The mediator contacted the parties as soon as possible and adopted a "back-to-back" Mediation method to understand the demands and contradictions of both parties respectively, and reviewed the relevant case evidence materials.

了解双方诉求，确认调解意愿。

Understand the demands of both parties and confirm the willingness to mediate.

调解员首先通过电话向原告A公司了解案件事实和诉求，A公司表示如该笔应收账款无法收回，将无法发放工人的工资，或将引发集体诉讼影响社会和谐，因此原告非常愿意通过调解快速化解纠纷，并表示如果被告能尽快支付租赁款，可以免除逾期利息。

The mediator first learned about the facts and demands of the case from the plaintiff Company A by phone. Company A stated that if the accounts receivable could not be recovered, the workers' wages would not be paid, or a class action lawsuit would be triggered to affect social harmony. Therefore, the plaintiff was very willing to quickly resolve the dispute through mediation, and stated that if the defendant could pay the lease payment as soon as possible, the overdue interest could be waived.

调解员随后通过电话向被告了解情况，B公司对租赁款结算金额没有异议，欠付原因是发包公司某建设公司欠付工程款导致的，现B公司已经与某建设公司就还款方案达成和解协议，B公司在有资金预算后也愿意通过调解尽快解决纠纷，不希望走到诉讼对簿公堂，既不利于维护双方的商业关系，涉诉情况增多也会影响公司贷款资信审查可能导致贷款额度减少。

The mediator then contacted the defendant by phone to learn about the situation. Company B had no objection to the settlement amount of the lease. The reason for the arrears was that a construction company of the contracting company owed the project payment. Company B has now reached a settlement agreement with the construction company on the repayment plan. Company B is also willing to resolve the dispute as soon as possible through mediation after having a financial budget. It does not want to go to court, which is not conducive to maintaining the business relationship between the two parties. The increase in litigation will also affect the company's loan credit review and may lead to a reduction in the loan amount.

归纳争议焦点，沟通促成和解。

Summarize the focus of the dispute and promote settlement through communication.

主要争议焦点是A公司是否能向某建设公司主张债权。案件审判员、书记员、调解员与原告A公司、被告B公司进行了谈话并记录，经分析，虽然A公司在钢板桩租赁时进行了钢板桩安装施工，但经法院审查本案案由为A公司与B公司之间的建筑设备租赁合同纠纷，而不是建设工程施工合同纠纷，所以某建设公司并非租赁合同相对人，也不能适用《最高人民法院关于审理建设工程施工合同纠纷案件适用法律问题的解释（一）》中突破合同相对性的相关规定，故A公司不能直接起诉某建设公司。然而，A公司又称B公司怠于向某建设公司追索工程款导致其债权无法实现，要对某建设公司提起债权代位权诉讼。

The main focus of the dispute is whether Company A can claim debts from a construction company. The judge, clerk, and mediator of the case had a conversation with the plaintiff Company A and the defendant Company B and recorded it. After analysis, although Company A installed the steel sheet piles when leasing the steel sheet piles, the court reviewed that the case was a dispute over the construction equipment leasing contract between Company A and Company B, not a dispute over the construction contract. Therefore, a certain construction company was not the counter-party of the leasing contract, and the relevant provisions of the "Interpretation of the Supreme People's Court on the Application of Laws in the Trial of Construction Contract Dispute Cases (I)" on breaking the principle of “Privity of Contract”could not be applied. Therefore, Company A could not directly sue a certain construction company. However, Company A also claimed that Company B was negligent in pursuing the construction payment from a certain construction company, resulting in its debt rights being unable to be realized, and it wanted to file a debt subrogation lawsuit against a certain construction company.

调解中了解到现B公司已经与某建设公司就还款方案达成和解协议，且某建设公司与担保人刘某都不愿意参加调解，为了尽快达成调解协议解决纠纷，后A公司先撤销了对某建设公司与担保人刘某的起诉。

During the mediation, it was learned that Company B had reached a settlement agreement with a certain construction company on the repayment plan, and that the certain construction company and the guarantor Liu were unwilling to participate in the mediation. In order to reach a mediation agreement as soon as possible to resolve the dispute, Company A later withdrew the lawsuit against the certain construction company and the guarantor Liu.

通过调解员多次耐心的电话沟通，后双方各退一步，被告以银行转账或银行承兑汇票等原告可以接受的金融工具(被告不承担任何财务费用)向原告分期支付租赁款本金，原告免去逾期利息，由于汇票可能存在承兑期限，调解员提示当事人如果是汇票支付，则需明确支付日期，后双方明确每期实际支付日期以原告接收到票据的日期为准，即使原告接受到票据时无背书转让也视作被告当期履约完成。

After several patient telephone communications by the mediator, both parties took a step back. The defendant paid the principal of the lease to the plaintiff in installments by bank transfer or bank acceptance bills and other financial instruments acceptable to the plaintiff (the defendant did not bear any financial expenses), and the plaintiff was exempted from overdue interest. Since the bills may have an acceptance period, the mediator reminded the parties that if they were paid by bills, they needed to specify the payment date. Later, both parties clarified that the actual payment date for each period shall be based on the date on which the plaintiff received the bill. Even if the plaintiff received the bill without endorsement, it was deemed that the defendant had fulfilled the contract for the period.

线上视频调解，高效化解纠纷。

Online video mediation system, efficient dispute resolution.

视频调解

Video Mediation

电子签名

Electronic Signature

双方最终确认了调解方案，并通过线上视频及电子签章形式签署调解协议,并由法院出具司法确认裁定书。

The two parties finally confirmed the mediation plan and signed the mediation agreement through online video mediation system and electronic signature, and the court issued a judicial confirmation ruling.

专家点评

COMMENTS OF EXPERT

关于审理建设工程领域买卖、租赁合同纠纷案件若干疑难问题解答。

Answers to several difficult questions about the trial of sales and leasing contract disputes in the field of construction projects.

关于合同的相对性

About the principle of “Privity of Contract”

实践中，建筑设备的出租方或建筑材料的出卖方起诉请求发包人或建筑企业承担付款责任，在认定责任主体时，应当遵循什么裁判原则？

In practice, when the lessor of construction equipment or the seller of construction materials sues the contractor or construction enterprise to bear the payment responsibility, what principles should be followed when identifying the responsible party?

这类案件的审理应当遵循合同相对性原则。根据《中华人民共和国民法典》（以下简称《民法典》）第四百六十五条第二款的规定，依法成立的合同，仅对当事人具有法律约束力，但是法律另有规定的除外。建筑企业的项目经理、实际施工人或项目部其他人员等行为人签订买卖、租赁合同，当事人请求建筑企业、发包人承担责任的，应当严格遵循合同相对性原则，审查行为人的行为性质,依法确定合同主体、责任主体及责任承担方式；不能仅以买卖的建筑材料、租赁的建筑设备被用于建设项目为由，即判决建筑企业、发包人承担责任；也不能随意突破合同相对性，不审查合同签订主体，而径行判令实际使用方承担责任。

The trial of such cases should follow the principle of contract relativity. According to the second paragraph of Article 465 of the Civil Code of the People's Republic of China (hereinafter referred to as the "Civil Code"), a contract established in accordance with the law is only legally binding on the parties, except as otherwise provided by law. If the project manager, actual construction personnel or other personnel of the project department of a construction company sign a sale or lease contract, and the parties request the construction company or the contractor to bear responsibility, the principle of contract relativity should be strictly followed, the nature of the behavior of the person should be examined, and the contract subject, the responsible party and the way of assuming responsibility should be determined in accordance with the law; the construction company or the contractor cannot be judged to bear responsibility simply on the grounds that the construction materials sold or the leased construction equipment are used in the construction project; nor can the relativity of the contract be arbitrarily broken, and the actual user should be ordered to bear responsibility without examining the contract signing party.

关于债权代位权

About the right of subrogation

《中华人民共和国民法典》（2020年5月28日第十三届全国人民代表大会第三次会议通过）01、第五百三十五条因债务人怠于行使其债权或者与该债权有关的从权利，影响债权人的到期债权实现的，债权人可以向人民法院请求以自己的名义代位行使债务人对相对人的权利，但是该权利专属于债务人自身的除外。代位权的行使范围以债权人的到期债权为限。债权人行使代位权的必要费用，由债务人负担。相对人对债务人的抗辩，可以向债权人主张。

Civil Code of the People's Republic of China (adopted at the third session of the 13th National People's Congress on May 28, 2020) 01. Article 535 If the debtor fails to exercise his creditor's rights or the accessory rights related to the creditor's rights, which affects the realization of the creditor's matured creditor's rights, the creditor may request the People's Court to exercise the debtor's rights against the counter-party in his own name, except that the rights belong exclusively to the debtor himself. The scope of the exercise of the right of subrogation is limited to the creditor's matured creditor's rights. The necessary expenses of the creditor in exercising the right of subrogation shall be borne by the debtor. The counter-party's defense against the debtor may be asserted to the creditor.

最高人民法院《全国法院贯彻实施民法典工作会议纪要》（法〔2021〕94号）民法典第五百三十五条规定的“债务人怠于行使其债权或者与该债权有关的从权利，影响债权人的到期债权实现的”，是指债务人不履行其对债权人的到期债务，又不以诉讼方式或者仲裁方式向相对人主张其享有的债权或者与该债权有关的从权利，致使债权人的到期债权未能实现。相对人不认为债务人有怠于行使其债权或者与该债权有关的从权利情况的，应当承担举证责任。

The "Minutes of the National Court Work Conference on the Implementation of the Civil Code" (Fa [2021] No. 94) of the Supreme People's Court stipulates that "the debtor fails to exercise his creditor's rights or the accessory rights related to the creditor's rights, which affects the realization of the creditor's matured creditor's rights" in Article 535 of the Civil Code means that the debtor fails to perform his matured debts to the creditor, and does not claim his creditor's rights or the accessory rights related to the creditor's rights to the counter-party through litigation or arbitration, resulting in the failure to realize the creditor's matured creditor's rights. If the counter-party does not believe that the debtor has failed to exercise his creditor's rights or the accessory rights related to the creditor's rights, he shall bear the burden of proof.

关于代付行为的性质认定

About determination of the nature of the payment behavior

实际施工人以自己名义签订合同，但在合同履行过程中，建筑企业支付了部分款项，当事人以此为由主张建筑企业承担责任，建筑企业抗辩仅是代付款项，对于建筑企业付款行为的性质应如何认定？

The actual construction person signed the contract in his own name, but during the performance of the contract, the construction company paid part of the money. The parties claimed that the construction company should bear responsibility on this basis. The construction company argued that it was only paying the money on behalf of the construction company. How should the nature of the payment behavior of the construction company be determined?

对这类案件，法院应当向当事人释明，要求其明确请求建筑企业承担责任的请求权基础(比如债的加入)，当事人应当就上述法律行为已经与建筑企业达成合意承担举证责任。在查明上述事实的基础上，依照《民法典》第五百二十三条、第五百五十二条规定确定付款行为的性质、责任主体和责任承担方式。

In such cases, the court should explain to the parties and require them to clarify the basis of their claim for the construction company to bear responsibility (such as the joining of debts), and the parties should bear the burden of proof that they have reached an agreement with the construction company on the above legal acts. On the basis of ascertaining the above facts, the nature of the payment behavior, the responsible party and the way of assuming responsibility shall be determined in accordance with Articles 523 and 552 of the Civil Code.