Research On The Application Of Priority In Construction Project Repayment

"Contract law " was issued and implemented in 1999, clause 286 in the new "Contract law " established a law system that the payment in construction project has priorities. But actually, there's no regulation about the foundation, implementation and range of the right in clause 286 in "Contract law", it's hard to manipulate, so few court protects contractor's legal rights according to clause 286 in the following judicial practice. On the other hand, industry of real estate is developing rapidly in China, real estate market is quite irregular because of the sluggishness of the relative law and judicial explanation, the phenomena is very serious that the payment of the project is in arrears, and then the stability of the society is influenced. In view of the situation, the Supreme Court issued an judicial explanation named 2002 NO. 16 in June in 2002, which explained several questions in how to apply the clause 286 in dealing with priorities in the payment in construction project by people's court. In 2003, the Supreme Court began to ask the society for opinions extensively, planning to issue new judicial explanations about the application of law in contract dispute of construction project, now the new judicial explanations are in the process of being discussed and perfected. In view of the fact that there's different understanding in how to maintain priorities of the contractor and how to realize the priority in the circle of theory and practice, in order to apply the law correctly and carry out the priority of the contractor, this essay sets its foothold in questions which may be encountered in practice, combines relativeopinions of law and judicial explanations in force, makes some probes into four aspects which contain foundation of the priority, range of the priority, performance of the priority and the disposal of the conflict between priority and other rights. Quite a few opinions of view of the thesis is my own.1. Foundation of the priority. Foundation is the premise of performance, to the question of the form in the foundation of priority, the priority in our country is a statutory right and needs no register in foundation. And to the question of the entity, Firstly, the project must be completed or expiration of contract, Secondly ,the contract letting party do not pay the project funds according to the appointed period of time, Finally ,the character of the project do not belongs to the range which can not be degrade or auctioned off. in regard of the object where priority exits, this essay define that it can only be the project being constructed which is constructed by contractor and belongs to the contract letting party At the same time, I think that when the project being constructed is destroyed or damaged, the priority exits in the compensation from the lose and money get from sales of the construction project.2. Range of the priority. According to the opinion manuscript which is asked for by the Supreme Court of China, court decision should affirm whether the contractor has the priority and confirm the range in which it has priority to be compensated for. This part studies the maintenance of the range in which priority can be applied in contract, and discuss the understanding of the performance bond money and the money which is advanced for the contract letting party and to be paid back later, at the same time, I describe the form of the project money and I think that the project money doesn't belong to the range that have the priority to be paid.3. Performance of the priority. Here comes the performance and realization of the priority after solving the problems of the foundation of priority and the range of priority, this thesis holds that lawsuit or arbitration is the road one must follow. Priority is unable to and cannot be performed before it's confirmed. The contractor cannot directly apply for the auction of the project and hastening is not the pre-progress. This part discusses how to affirm 6 month's time of performance and whether this time of period is reasonable. In the way of performing t...