On The Prior Indemnification Of Construction Project Cost

Legislature uses the experience of other countries and districts and the research results about the real rights of the civil law circle and sets up a new law system——prior indemnification system of construction project cost, which is provided in the 286th clause of Contract Law of the People's Republic of China. It offers guarantee in law for the existence and development of the building trade. In Continental Law Legal System, from Roman Law to Civil Code of German, Civil Code of France, Civil Code of Swiss and the Civil Code of the Taiwan District, legal hypothec of priority is provided to protect the contractor's project cost. In the countries of English-American Legal System, there is no provision about the rights, but lien system is stipulated similar to legal hypothec. The system is a legislation innovation of complying with the international trend. It has important theory value and realistic meaning. Starting from the intension and nature of the priority, the article explains the value orientation and system function, attempts with contractor and bank, contractor and consumer these two typical rights conflicts as the model, makes a comparison between the relevant rights of the construction project, seeks the protection of relevant obligees on the basis of ensuring this system to exercise rationally, in order to abolish creditor's equal rights and protect the special creditor. This article can be divided into four parts: Part One defines the intension and nature of the priority. The priority is that when the charger does not pay the project cost according to the appointment, contractor can make an agreement with charger to convert project into money or apply court to auction and the contractor has preferential rights to the money. Prescribing the theory of lien, legal hypothec and priority, it is provided as special priority, and on the basis of this launch the argumentation to relevant problems . Part Two analyses and reveals the value orientation and system function. The value of the law forms the foundation of assessing all legal legitimacy. Analysing the value foundation, it reveals that this system cares and protects people's rights on the basis of legal value idea of essence justice, which makes the system to get rational reason. The priority is based on the idea of protecting social disadvantaged person. Its function lies in abolishing the principle of creditor's equal rights, balancing the interests of each side. At the same time, it is provided by law and makes the rights have system function of pledge. Because the priority usually involves some areas that are difficult to reach, it can fill in the part that other rights can not cover. Part Three makes a comparison between the contractor and bank, contractor and consumer as model, on the basis of the theories of the second part, to the conflict of relevant rights on construction project with two kinds of most typical rights conflicts. In the rights conflict situation of the contractor and bank, the writer explains the reason that is the rights of contractor is prior to that of bank, from the three respects: the nature of the rights; the contribution of increasing value of the construction; the social security function .In the conflict between the contractor and consumer, writer describes the protections of consumer from the two respects: the rights of subsistence...