| In the field of our country's engineering construction, project is general phenomenon for fund not to in arrears with, and project fund back momentum growing on and on. For this reason, article 286 of our country's " contract law " has stipulated the project contractor's preferential right to indemnification, and in adopt" the Supreme People's Court have priority reply, right to indemnification of issue to concrete application about construction project cost ". Thereafter, the form has carried on the pointed regulation. Even so, should have priority some so far still unresolved problems exist no matter in theory or in practice in the right to indemnification, this text is put forward my own view to question these to plan, is it can get some rationalized suggestions out of for this question to expect, and is adopted!The full text is divided into five parts altogether:First part : The legal principle foundation of the right to indemnification and value analysis that the contractor :has priority. This legal principle foundation of the right to indemnification for having priority of part has put forward several kinds of different views, namely "own in common and say " , " appreciation is said " , "the salary has priority to say " With "talking fairly" . After comparative analysis, and then put forward one's own view: The construction project contractor's preferential Tight to indemnification is a law on the basis of the fair principle, according to characteristic of building contract, give contractor is it guarantee and is it rely on oneself right that relieve with work achievement of materialization their to creditor's rights their one that repay to have priority to go on; To the value question, have proposed three necessities: First, the contractor's preferential right to indemnification has priority to help to carry out the legal principle of having priority to protect the labor remuneration; Second, the contractor's preferential right to indemnification has priority to help to promote the development of construction; Third, the contractor's preferential right to indemnification has priority to accord with the essence of the contract for work. Have pointed out and had priority the important value of the right to indemnification from these three necessities.Second part: Nature analysis of the right to indemnification that the contractor has priority. One that is to right this nature is it have three different theory namely lien say to have, legal hypothec say to priority saying. Lien is said to the original creation of scholar of our country, it comes from " construction contract regulations of the construction project " that State Administration of Industry and Commerce, Ministry of Construction jointly make; Legal hypothec is it explain from legislative course, right characteristic, economic efficiency and comparative law angle to his view to say; Priority say on the basis of studying and legislating abroad, explain their views from right characteristic, angle, result of function and person who establish of system mainly. This text is relatively investigating the hypothec of saving from damage of Germany, legal hypothec of Switzerland, real estate priority of France, real estate of Japan announcement fetch privilege first, legal hypothec of Taiwan and at the legal foundation of priority, U.S.A. of law, have carried on the powerful refuting, the choice of the right to indemnification and legal hypothec to having priority to the lien of the real estate, I compare from six respects of historical evolution, legislative system, legislative background, right characteristic, right function, respose to priority, assert synthetically, though legal hypothec and real estate priority are in the origin, nature, have a lot of similarity functionally, on the basis of China present current situation, it determines the nature to be a legal hypothec preferential right to indemnification of construction project, accord with the legislative system of China and legal tradition even more.The third part : The defect that the right to indemnification exists in practice and corresponding solution that the contractor has priority. Should propose partly 67 have priority in the place of the defect of the right to indemnification, can be divided into ten respects: Sureness of the subject of preferential right to indemnification; Definition of the contract range of construction project and target; Definition of can auction ing, reduced subject matter type; Order that the project fund has priority to be met; Period for exercising termination of priority; Procedure question of the priority enforcement; Definition of the project cost; Question of the 286th judicial explanation is operated " contract law "; The 286th cases of judicial explanation and relevant other problems -about " contract law ". Later answered to some subject matters among them, deficiency in suitable to the right: The subject range, range of the creditor's rights of the guarantee, realization way of the preferential right to indemnification to define, assure the subject matter accurately: Convert into money and auction such four respects as the concrete procedure, etc. to carry on clearly, expect to solve relevant problems.The fourth part : The conflicts of the right to indemnification and relevant Tights that the contractor has priority and forming of the right strange circle. Whether should is it have priority 3 unreasonable place of right to indemnification to point out partly. Cost have priority right to indemnification and agree on situation that hypothec coexist in construct ion project, what has priority; The construction project cost has priority under the situation that the right to indemnification and consumer's right coexist, what has priority; Forming of the strange circle phenomenon that the right has priority. Have pointed out the place of the current and fixed contradiction to these right .conflicts. and Tights along the location question, proposed author's one's own view at the same time: Agree on whom creditor hypothec protect enjoy superior to other general priority of real right of creditor render a service, equate with such actual expenditure expenses as material style the contractor enjoys,etc. and have priority to render a service in right to indemnification; So long as consumers have already prepaid the cost of commodity apartment, should receive the equal legal protection, should pay according to consumer commodity apartment sold for fund number decide consumer right degree that protect by law in advance; In order to dissolve this contradiction of strange circle of the right, ones that realize between every law link up and coordination, maintain society fair and order, must define consumer oppose contractor have priority terms of the right to indemnification, should is it must carry on commodity apartment advance sale contract register, make his right of making commodity apartment have absolute effects because the advance notice of the real right is registered to include also, the right to indemnification and effect in the hypothec that is thereafter set up that thus get rid of a contractor and have priority.The fifth part : Corresponding related system framework of the right to indemnification that the contractor has priority. Should offer two supplementary measures partly: Real estate resignation system have priority the Tight resignation system of the right to indemnification. The resignation system of the real estate has offered a kind of legal means to party, the party makes one's own creditor's rights have certain guarantee through registering. The real estate is registered to change the speciality without social openness of creditor's rights, have result of announcement, the public can know a certain existence about request right of the real right change of the real estate through the registry, 'therefore the one that rendered a service in this request right strengthened and will not damage the trade safely. Set up construction project and have priority to be significant with practice :in theory in resignation system of the right to indemnification, it not only accords with the announcement common letter principle of the real right but also can fully ensure interests of relevant interested parties to set up this system, for example: Involve financial institution it need while building project secured loan business only not arriving about registering organ register there aren't file consulting, combine the comprehensive factor of the project under construction, thus do rational expectancy to the consequence of the trade, in order to avoid making one's own interests suffer the harm of the accident because the contractor exercises and has priority the right to indemnification, finally, financial institution and sending the trade between people of the bag safely and can be maintained, can reflect that the law is fair. Equally, the contractor, after consulting the relevant information that register, can make rational prediction to the consequence of the trade too, thus make one's own interests get the greatest guarantee, meanwhile, the economic worth of the construction project was fully utilized, the development that financial circles, construction and relevant industries will be healthy and orderly, the legislative intention of article 286 of " contract law" gets abundant embodiment too.The full text amounts to about45,000 words. |
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