尊敬的审判长：

浙江利群律师事务所接受A的委托，指派我们担任原告A诉被告B承揽合同纠纷一案的一审代理人。代理人经过庭前阅卷,结合庭审的情况，发表代理意见如下，供法庭参考：

一、被告B系本案的适格主体。

1、原被告之间的承揽合同关系合法有效。被告方对于原告提交的《木工承包协议书》以及该协议书上被告个人签字的真实性均予以认可，这足以表明该协议书是原被告双方真实的意思表示。同时，该协议书上仅有被告个人的签字，没有加盖C公司或相关项目部（以下称C公司）的印章，根据合同的相对性原则，原告仅与被告个人发生合同关系。

2、被告将木工工程发包给原告的行为即不是职务行为也不能构成表见代理，其行为后果应由被告个人承担。关于被告与C公司究竟是何种关系这一重要问题，被告始终未向法庭提交任何的证据，也没有作出正面的说明。但根据原告的调查了解，被告B并不是C公司的职工，也不是C公司的股东，其行为自然不能被认定为代表C公司的职务行为。同时，被告的行为也不具备表见代理的构成要件。被告B从未向原告表明其与C公司之间的关系，也从未以C公司的名义同原告发生业务往来，其与原告签约的行为系其个人行为，不存在代理C公司的情况。

3、针对被告方提交的所谓的《经济考核责任书》，鉴于被告未向法庭提交证据原件，代理人认为该证据的真实性有待查证。同时，即便该证据是真实的，那么从该证据中“自负盈亏”等的相关表述中也可以看出，被告与C公司之间应该是挂靠承包的关系。被告作为实际施工承包人，既是具体合同的关系人也是挂靠承包合同中约定的“自负盈亏”的民事责任最终承担者，理应由其个人向原告承担责任。

二、关于工期的问题。

《木工承包协议书》对于本案的工期做了如下约定：“根据建设单位的总工期要求及项目部安排的施工进度计划进行施工……”代理人认为该条款对于工期的约定是不明确的，根据合同法第六十一条的规定和诚实信用的原则，该条款都不应被理解为“应无条件地消极等待直至建设单位安排具体的施工进度计划”。代理人认为，对于该条款的理解应当回到工程项目尚在正常运作的背景下来考虑，其“根据建设单位的总工期要求”的工期约定应当有一个为合同双方默认的前提条件，那就是工程项目能够在合理的时间内正常地开工，被告方关于工期的抗辩显然违背了诚实信用的原则，也与日常生活中的交易习惯不符。

三、本案合同的目的已经无法实现，原告有权要求被告返还保证金并支付利息。

根据原告调查的事实以及被告代理人的自认和证人的证言，可以证实：C公司已经陷入了债务危机；X工程被台州市政府重整，整个工程停工已将近两年且复工无望，即使复工，建设单位、实际承包人等也会发生变化；原告承揽木工工程的XB1标段13号、15号、17号楼在打桩阶段就已停工，至今不具备木工施工的条件，即使将来几年后复工，被告也不再具备发包条件。鉴于以上事实，代理人认为，因被告的违约行为，导致原告与被告签订合同的目的已经无法实现，依法有权解除合同，并要求被告返还已经支付的保证金。同时，虽然合同对保证金作出了“不计息”的约定，但是考虑到本案原被告之间的合同并未实际履行的实际情况，原告所支付的保证金实际上并未起到“保证金”的作用，因此原告有权要求被告支付占用原告资金期间的利息。

综上意见，代理人认为本案被告系适格主体，且原告与被告签订合同的目的已经无法实现，请求人民法院支持原告的诉讼请求

代理人：阮涛涛

浙江利群律师事务所律师

Dear Chief Justice

Zhejiang Liqun Law Firm has accepted the commission of A and appointed us as the first instance agent for the plaintiff A v. defendant B in the contract dispute case. After reviewing the documents before the court and considering the situation of the trial, the agent has expressed the following opinions for the reference of the court:

1. Defendant B is the eligible subject of this case.

(1)The contractual relationship between the plaintiff and the defendant is legal and valid. The defendant acknowledges the authenticity of the "Woodworking Contract Agreement" submitted by the plaintiff and the defendant's personal signature on the agreement, which is sufficient to indicate that the agreement is a true expression of the intentions of both the plaintiff and the defendant. Meanwhile, the agreement only has the signature of the defendant and is not stamped with the seal of Company C or the relevant project department (hereinafter referred to as Company C). According to the principle of relativity of the contract, the plaintiff only has a contractual relationship with the defendant.

(2)The defendant's act of contracting out carpentry works to the plaintiff is neither an official act nor a Apparent authority, and the consequences of its act should be borne by the defendant himself. Regarding the important issue of the relationship between the defendant and Company C, the defendant has never submitted any evidence to the court or provided a positive explanation. However, according to the plaintiff's investigation, defendant B is not an employee of Company C or a shareholder of Company C, and its behavior cannot be considered as a representative of Company C's official behavior. At the same time, the defendant's behavior does not meet the constitutive requirements of Apparent authority. Defendant B has never disclosed its relationship with Company C to the plaintiff, nor has it had any business dealings with the plaintiff in the name of Company C. The signing of the contract with the plaintiff is his personal act, and there is no situation of representing Company C.

(3)Regarding the so-called "Economic Assessment Responsibility Letter" submitted by the defendant, considering that the defendant did not submit the original evidence to the court, the agent believes that the authenticity of the evidence needs to be verified. At the same time, even if the evidence is true, it can be seen from the relevant statements such as "self responsibility for profits and losses" in the evidence that the defendant and Company C should have a affiliated contract relationship. As the actual construction contractor, the defendant is not only a related party to the specific contract, but also the ultimate bear of the civil liability of "self responsibility for profits and losses" stipulated in the contract. It should be borne by the defendant personally to the plaintiff.

2. Regarding the issue of construction period.

The "Woodworking Contract Agreement" stipulates the following provisions for the construction period of this case: "Construction shall be carried out according to the overall construction period requirements of the construction unit and the construction schedule arranged by the project department..." The agent believes that the provision regarding the construction period is unclear, and in accordance with Article 61 of the Contract Law and the principle of good faith, This clause should not be understood as' unconditionally waiting passively until the construction unit arranges a specific construction schedule '. The agent believes that the understanding of this clause should be considered in the context of the normal operation of the engineering project. The construction period agreement "based on the total construction period requirements of the construction unit" should have a default prerequisite for both parties to the contract, which is that the engineering project can start normally within a reasonable time. The defense of the defendant regarding the construction period clearly violates the principle of good faith, It is also inconsistent with daily trading habits.

3. The purpose of the contract in this case is no longer achievable, and the plaintiff has the right to demand that the defendant return the deposit and pay interest.

Based on the facts investigated by the plaintiff, as well as the confession of the defendant's agent and the testimony of witnesses, it can be confirmed that Company C has fallen into a debt crisis; The X project has been reorganized by the Taizhou Municipal Government, and the entire project has been suspended for nearly two years with no hope of resuming work. Even if it resumes work, the construction unit, actual contractor, etc. will also undergo changes; The plaintiff's XB1 Lot 13, 15, and 17, which were contracted for woodworking engineering, have been suspended during the piling phase and do not yet meet the conditions for woodworking construction. Even if work resumes in a few years in the future, the defendant will no longer have the conditions for contract awarding. Given the above facts, the agent believes that due to the defendant's breach of contract, the purpose of signing the contract between the plaintiff and the defendant is no longer achievable, and has the right to terminate the contract in accordance with the law and demand that the defendant return the deposit already paid. At the same time, although the contract stipulates that the deposit shall not bear interest, considering the fact that the contract between the plaintiff and the defendant in this case was not actually fulfilled, the deposit paid by the plaintiff did not actually serve as a "deposit". Therefore, the plaintiff has the right to demand that the defendant pay interest during the period of occupying the plaintiff's funds.

Based on the above opinions, the agent believes that the defendant in this case is a qualified subject and that the purpose of signing a contract between the plaintiff and the defendant is no longer achievable. Therefore, the agent requests the people's court to support the plaintiff's lawsuit request.

Agent: Ruan Taotao

Lawyer from Zhejiang Liqun Law Firm