Construction Project Priority Claim Research

In order to protect the advantage of the contactor, the article 286 in contract law prescribes the prior claim of the construction project. The Judicial Explanations strengthen the protection on the contactor and balance the advantage of the contactor and the other obligees. However, its property in law is disputed fiercely.There are different legislations about the legal character of the prior claim of the construction project in different country and area. And there are some opinions in the abstract. There are at present mainly 3 kinds of viewpoint to the legal character of the prior claim of the construction project. They are the theory of lien, the theory of legal mortgage and the theory of priority. The author analyzes the defects in the theory of lien and the theory of mortgage. The theory of priority is reasonable, and holds that the prior claim of the construction project is a kind of priority.The scholars have not yet agreed on the time of the emergence of the prior claim of the construction project. There are mainly 2 viewpoints. The first is the theory of the non-extinguishment of the creditor's rights. This theory supports that if the debtor have not pay the money according to the contract, the preference receiving rights of the payment emerges. The second is the theory of co-emergence of the creditor's rights and the preference receiving rights of the payment. This theory holds that we should stipulate the co-emergence of the creditor's rights and the preference receiving rights of the payment to make the preference receiving rights of the payment become effective a bit earlier in order to protect the contractor's benefit. The author thinks that the time of the emergence of the prior claim of the construction project is the time of its registration. The emergence of the prior claim of the construction project should have definite condition .Thy are: first, there must be legitimate construction contracts; second, the project has been completed or the project has not been completed but in completing; third, the owner has not paid the contractor for the stipulated price of the project; fourth, the project does not belong to "construction projects which are not converted into money or not fit for being auctioned".Because the legislation is not definite, there are some different opinions about the time, the manner; the range of performing right and the right can be given up or not in the course of performing the prior claim of the construction project. The author thinks: there are 2 instances about the performance time of the prior claim of the construction project. First, when the construction project can be complete in gear, the contractor can perform the right from the time of the completion of the project. Second, when the project can not be complete in gear, the contractor can perform the right from the promissory time for the completion of the project. The range of performing right of the prior claim of the construction project should include the advance fund of the contractor. When the contractor performs the prior claim of the construction project, he may not take interpellation as the premise. In order to realize the purpose of the article 286 in contract law, protect market order of the construction; solve the problem of the laborage not paid, the prior claim of the construction project can not be given up.To the conflict of relevant rights on construction project, there are two kinds of most typical rights conflicts. They are the prior claim of the construction project and hypothec; the prior claim of the construction project and the right of consumer. In the rights conflict situation of the prior claim of the construction project and hypothec, the author explains the reason that the prior claim of the construction project is prior to hypothec, from the three respects: the character of the rights; the contribution of increasing value of the construction; the social security function .In the conflict between the prior claim of the construction project and the right of consumer, the author describes the protections of consumer from the two respects: the rights of subsistence prior to proprietary, the protection of disadvantaged groups.In the end, in order to protect the safety of exchange, some advices about how to build a registration system of the prior claim of the construction project that has defendable effect are proposed.