On The Preference Receiving Rights Of The Payment On The Price Of Construction Projects

The construction market in our country is not mature now. And the owners of the projects often default their payments. The government has tried to solve this problem but their effort has little effect. In this situation, the Contract Law in reference to the foreign legislations prescribes that the contractors have the preference receiving rights of the payment on the projects they are building for their creditor's rights of the price of the project. These rights belong to the legal security interests prescribed directly by the law. The scholars do not agree on the character, the range of the rights, the conditions for the coming into existence of the rights and the procedure of the realization of the rights and so on about the preference receiving rights of the payment on the price of projects. People are often confused by how to use these rights in the practice. This thesis discusses the jurisprudential and practical aspects of the preference receiving rights of the payment on the price of construction projects. This thesis consists of five chapters. The first chapter is "the legal character of the preference receiving rights of the payment on the price of construction projects". The author summarizes the disputes about the preference receiving rights of the payment on the price of construction projects. There are at present mainly 3 kinds of viewpoint to the legal character of the preference receiving rights of the payment on the price of construction projects. They are the theory of lien, the theory of legal mortgage and the theory of legal priority. The author analyzes the defects in the theory of lien and the theory of legal mortgage. Then he points out that the theory of legal priority is reasonable, and holds that the preference receiving right of the payment on the price of construction projects is a kind of legal priority. The theory of lien mainly has 3 defects: firstly, the contractors do not always occupy the construction projects they have built up, but the appearance and the existence of the lien depends on the occupancy of the objective by the creditors; secondly, according to the traditional theory of real rights, the lien can only be applied to the chattel; thirdly, the law have not stipulated this. There are four defects in the theory of legal mortgage: firstly, the theory of legal mortgage is not consistent with the present legal system of mortgage in our country; secondly, if the preference receiving rights of the payment on the price of construction projects is defined as mortgage, it will not meet the need of registration stipulated in the Pledge Law; thirdly if the preference receiving rights of the payment is defined as mortgage, it will contradict to the traditional mortgage theory of our country; fourthly if the preference receiving rights of the payment is defined as mortgage, it will contradict to the judicatory interpretation of the supreme court. There are mainly four basis for the theory of priority: firstly, it is accepted by many countries to define the preference receiving rights of the payment as priority; secondly, some of the related provisions of the laws and the judicatory interpretations of our country; thirdly, the aim of the legislature of our country to stipulate this clause of the preference receiving rights of the payment is identical with the aim of the system of priority; fourthly, the preference receiving rights of the payment tallies with the concept and the legal characters of the priority. The second chapter is "the emergence of the preference receiving rights of the payment on the price of construction projects". This chapter focuses on the conditions and the time of the emergence of the preference receiving rights of the payment. There are five conditions for the emergence of the preference receiving rights of the payment. Those are: first, there must be legitimate construction contracts; second, the project has been completed or although the project has not been completed but has exceeded the stipulated time in the contract for the completion of the project;...