On Wage Priority

Recently, it is prevailing for many enterprises to refuse or delay wages of workers in due time, especially migrant workers. In order to solve this problem, both the central and local government have launched many campaigns to clear up debts of payments of workers. However, these campaigns lack legal grounds, and could not solve the issue fundamentally, which leads us to seek a legal resolution. In order to ensure the payment of wages, many countries grant wage priority to the employee, protecting the interests of the unprivileged group. Through doing research of the priority system of ancient China and its counterpart which stem from ancient Rome and developed in Europe and America, the author proposes that the priority system was established in order to protect the right of the weaker group and to set up public policy, by grant "privilege" to certain group of people and then to organize a harmonious society. Generally speaking, priority includes two categories: the priority of purchase and the priority of claim. With the involvement of the priority system in the Continent System, the concept of priority has involved to that according to the provisions of law, certain special creditors enjoys the priority of payment over other creditors on specified or general property of the debtor. As far as object matter is concerned, priority can be divided to two other categories: general priority and special priority. And wage priority belongs to general priority. The wage priority is priority of claims of payment by workers for accorded work directly provided by law, on the general property of the debtor. There have been three views on the character of priority of wages, the first is mortgage right theory, the second is the theory of special effect, and the third is the theory of sequence of payment. The author thinks that, as the wage priority has the character of mortgage,value and domination,therefore, it is a statutory mortgage right. The theory of sequence of payment, which suggests that the priority of payment is merely an order, lacking substantial grounds, and cannot be established. The theory of special effect, based on the specialties of wage priority - the uncertainties of its object matter and no need to be published by held or by registered, denies this priority to be mortgage right. The author holds that, with the involvement of mortgage right, the floating charge and the assets mortgage have emerged, the uncertainties of object could not be a reason to deny the character of mortgage right of this priority. In the meanwhile, law directly provides this priority, and there is no need to hold or to register to make it public. The characteristics of this priority are legalization, uncertainties of object matter and do not need to be made public by held or registered. Its legalization contains, its establishment, the obligatory right it ensures and its effect are directly provided by law. The priority of wages is based on the general property of the debtor, including chattels and the real estates. As its object matter is uncertain, it does not subject to the conditions of holding or registration. The wage priority breaks the equal status of creditors, what is its legal ground? The author thinks that, at present, the labor market makes the laborer to be "attached to" the employers, and in the course of working, labor ingredient is always at an inferior status. The laborers are in lack of preventing measures, due to the intangible character of laboring payment. And the non-continuous character of wage payment, there exists the possibility of delayed wages and refused payments. Therefore, it is necessary to grant priority of wages to workers, which is also for the protection of human rights and the stability of society. However, the present provisions of wage's protection have the following shortages, the legislation is non-centralized and unsystematic; relevant provisions are not specified and could not be used; the effect of the present priority of wages are limited, and its protection of labors are n...