Theory Of Construction Privilege

Article 286 of the Contract Law regulation gives the constructors the right that if the developers do not pay construction cost according to the contract,the constructors could enter into an agreement with the developer to liquidation,the constructors also could apply to the court to start the construction, as to the distribution of the liquidation or auction price, the constructors have the priority right. Start from the analysis of the article content, the author thinks that the article contains two types right of the contractor, one kind of right is to lauch an auction or liquidation of the constuctions and the right to decide the prior order in the construction price distribution.These two rights have the nature of the property right.The other right is the right to get the pay from the developer,this right has the nature of the creditor right.It is necessary to distinguish.The right that has the nature of property right is established by the Contract Law,it also has the nature of the guaranty.Which type of guaranty is this right attribute to?This question is not the discussion about the character of the right but the discussion about the legislation.Through the Comparison of the civil law countries,author draw the conclusion that the civil law country set the right of the construtors roughly in two ways, one is legal mortgage,the other is privilege.These coutries that establishing the privilege systems almost take the right of constructors as real.However,the other countries that not establishing the privilege system set the right of constrctors in the part of the contract or mortgage in the civil law.Although different countries set the right in the different parts in the civil law,but the content of the right almost are same.It proved the author's view that how to name the right is depended on the guaranty legislation.The author thinks that China should establish privilege system,and take the right of constructors expressly as the construction privilege.It is one type of the real privilege.It means that if the developers do not pay construction cost according to the contract,the constructors could enter into an agreement with the developer to liquidation,the constructors also could apply to the court to start the construction, as to the distribution of the liquidation or auction price, the constructors have the priority right.The construction privilege holder is limited in the subject that have contract with the developer directly.The privilege object is the project that the constructor built himself.Author also puts forward the advice for legislation amendment and judicial practice in the area the privilege's legal character,publication and registration.