On The Priority Of Claim Construction Project Contractor

It is proscribed in Article 286 of the Contract Law of the People's Republic of China, "If the developer failed to pay the price in accordance with the contract, the contractor may demand payment from the developer within a reasonable period. Where the developer fails to pay the price at the end of such period, the contractor may enter into an agreement with the developer to liquidate the project, and may also petition the People's Court to auction the project in accordance with the law, unless such project is not fit for liquidation or auction in light of its nature. The construction project price shall be paid in priority out of proceeds from the liquidation or auction of the project." But the undefined nature of the prior right has resulted in some different views for its establishment, performance and validity.In this paper, based on the characteristics of Construction Contract and the production background of the contractor's prior right, the juristical basis, value, nature and some other problems in judicial practice are analyzed and discussed. In the end, some advice about how to build a system of registration of the contractor's prior right is proposed.Based on the principle of fairness and the characteristics of Construction Contract, the theoretical foundation of the contractor's prior right is a kind of right of self-relief to guarantee the contractor's claim for his labor. It is obvious that the purpose of the right is to protect the contractor's interests.The contractor's prior right in construction project is stipulated in laws of in many countries and areas, although it is defined in different ways. In this paper, the nature of the prior right is discussed from many aspects of historical evolution, legislative system and background, characteristics and function. In author's opinion, the contractor's prior right shall be defined as legal mortgage, which may accord with China's jurisprudence and tradition better.The subjects of the prior right are only the contractors of the Contract for Construction, not including Design and Investigation. And Completion is not a necessary condition. Those projects that are not...