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Legal Research On The Priority Of Claim In Construction Projects

Posted on:2009-03-07Degree:MasterType:Thesis
Country:ChinaCandidate:R R FengFull Text:PDF
GTID:2166360248954974Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
In our country,the construction project contractor's project cost is often behind in payment seriously,influencing the healthy and stable development of the construction enterprise.The 286th item of the Contract Law,which was put into prictice in October 1st 1999,aiming to solve such problems,but owing to its infeasibilty,it didn't play the role.The Supreme People's Court made some concrete judicial explanation for it,and then coursed some arguments which have not be decleared in judicial practice and these arguments afford many problems in theory and practice.This thesis analyzes many problems in theory and judicial practice about the priority of claim in construction projects according to the law of China and many other foreign countries.The appropriate definition of basic legal issues such as conception,characteristics and legal nature of the priority of claim in construction projects,and it's coordination with the principle of property rights publicity is the prerequisite and basis of solving various difficult problems in prictice.And the clarity of these basic issues is the most important prerequisite for the introduction of this thesis.This thesis makes analysis and study of the problems about the cause and exercise of the priority of claim in construction projects。First,we will discourse the cause of the priority of claim in construction projects and whether it should register,and then furtherly discuss the preconditions,the restrictions of the duration,the way to exercise and the scope to exercise of the priority for repayment of the contractors.Facing the conflict of right between the priority for repayment of contractors,mortagagees,the purchasers of pre-sale houses,and the holder in the advance notice registration,we expose the conflicts and propose sevel methods to solve the problem.In addition,the thesis make research and analysis of foreign legislation clauses which provide the similar right to the 286th item of The Contract Law.Through the study on national security interest system and construction contractors priority for repayment,we analyze whether these countries all provede this right or not,and find how to introduce and refer to the advanced and mature legislative experiences of these countries when setting up institutional arrangement of security interest system.The end of the thesis thought about current legislative system of security interest, and some specific recommendations to the current condition of our country.To correctly understand the 286th item of the contract law and to hold a proper position is an urgent problem which the legal theory field and the judicial practice have to solve.And it can help perfect and steady the security interest system.The penman think that in order to perfect the security interest system and to make it suit the need of adjusting the legislative relation of society and law.Established on current security interest system of our country,we should combine with Chinese practical situation,but not blindly take a country's law as authority and follow it.In the future civil code,Ⅰprefer to take contractor's priority for repament as a statutory guaranteed property right,and take the three types of traditional security interest as equal.
Keywords/Search Tags:The priority of claim in construction projects, Article 286 of contract law, Payment of the construction projects
PDF Full Text Request
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