案情

胡某对其自家房屋进行翻建，将泥水工程以点包方式承包给陈某，即包清工,包工不包料，泥工100元/天、粗工80元/天。陈某由于人手不够，叫上同行周某共同参与。在翻建房屋过程中，由于未使用安全网等安全措施，周某不慎从房顶摔到楼板上，脊椎盘摔断，造成一级伤残。随后因赔偿问题未能达成协议，周某向黄岩区人民法院起诉房主胡某，要求其承担几十万的损失。

律师观点

承揽合同关系是承揽人按照定作人的要求完成工作，交付工作成果，定作人给付报酬的权利义务关系。

因为建房是一项专业性、技术性比较强的工作，胡某作为房主对该工作并不内行，他需要的是陈某、周某提供技术和经验，注重的是竣工房子的工作成果。胡某并不从陈某、周某身上赚取利润为目的。由于对建房缺乏专业知识，胡某也没有指挥安排陈某、周某等泥水匠的工作，让他们听命于他，相反被胡某不还要听从陈某、周某等人的安排，为翻建房子提供需求的材料和各种便利条件。至于按日计酬还是包死费用，只是双方约定的报酬计算方式的不同，不是判断承揽关系和雇佣关系的唯一标准。所以胡某与陈某、周某等人不存在支配与服从的关系，故应认定为承揽合同关系，而非雇用合同关系。如果被告陈元江没有赚取抽头和利润，应认为陈某、周某共同承揽或合伙承揽。在承揽关系中，承揽人在完成工作中遭到损害或致人损害的，除因不可抗力等不可归责于双方当事人的原因之外，承揽人在完成工作中应独立承担风险。本案中周某的受伤是由被告陈某、周某自己疏忽大意，没有使用安全网等安全措施而造成的，应自己承担风险。

case

Hu renovated his own house and contracted the mud and water project to Chen in a spot contract manner, which included cleaning work, labor but not materials. The mud work cost 100 yuan/day and the rough work cost 80 yuan/day. Due to insufficient manpower, Chen asked his colleague Zhou to participate together. During the process of renovating the house, due to the lack of safety measures such as safety nets, Zhou accidentally fell from the roof to the floor, breaking his spinal disc and causing first degree disability. Subsequently, due to the failure to reach an agreement on compensation, Zhou sued the homeowner Hu in the Huangyan District People's Court, demanding that he bear hundreds of thousands of losses.

Lawyer's viewpoint

The contractual relationship refers to the rights and obligations of the contractor to complete the work according to the requirements of the ordering party, deliver the work results, and the ordering party to pay remuneration.

Because building a house is a highly professional and technical job, as a homeowner, Hu is not proficient in this job. He needs Chen and Zhou to provide technology and experience, and focuses on the results of the completed house work. Hu does not aim to earn profits from Chen and Zhou. Due to a lack of professional knowledge in building houses, Hu did not command and arrange the work of masons such as Chen and Zhou to obey him. On the contrary, Hu did not have to follow the arrangements of Chen and Zhou, providing the necessary materials and various convenient conditions for the renovation of the house. As for whether to pay on a daily basis or to include expenses, it is only a difference in the calculation method agreed upon by both parties, and is not the only criterion for judging the contract and employment relationship. So Hu, Chen, Zhou, and others do not have a relationship of domination and obedience, so it should be recognized as a contractual relationship rather than an employment contract relationship. If the defendant Chen Yuanjiang did not earn any profits or profits, it should be considered that Chen and Zhou jointly contracted or jointly contracted. In the contracting relationship, if the contractor suffers damage or causes harm to others during the completion of the work, except for reasons that cannot be attributed to both parties such as force majeure, the contractor shall independently bear the risk during the completion of the work. The injury of Zhou in this case was caused by the defendant Chen and Zhou's negligence and failure to use safety measures such as safety nets, and they should bear the risk themselves.