The Right Conflicts And Resolution In The Realization Of The Priority Of Compensation In Construction Projects

In the eighties and nineties of the twentieth century,with the rapid development of China's construction industry,some problems have begun to emerge,among which the most serious one is the arrears of construction project section.This problem has seriously threatened the stability and harmony of society.To solve it,Article 286 of the Contract Law stipulates contractor's rights in priority of construction projects.But the rule is so simple that it does not provide a solution for the conflict of rights when several contractors claim the priority of construction project at the same time,or the conflicts among the rights in priority of construction projects of contractors,the bank mortgage,the rights for transfer request of commercial housing purchasers,the employee's claims of bankrupt enterprises and so on.Although Supreme People's Court has introduced a rescript called “the Official Reply to Issues of Reimbursement Priority of Construction Works Payment”(It is hereinafter referred to as the Official Reply)later,the differences between the provision of Property Law and the Official Reply has bred a lot of new problems.Therefore,on the basis of combing the above-mentioned conflicts of rights,this dissertation proposed specific solutions to each group of rights conflicts,hoping to be helpful to judicial practice and theoretical research.In addition to the introduction,the dissertation mainly includes five parts:The first part is the analysis of the normative basis of rights in priority of construction projects.This article analyze the structure of Article 286 of the Contract Law from the three aspects,including the assumptions,behavior patterns and legal consequences.In the discussion of the main body of the behavior,it shows that the discussion about how to balance the mutual interests when several contractors claim the priority of construction project at the same time.With a analysis of the legal consequences,it shows that the study about the nature of the rights in priority of construction projects,and the thinking about how to resolve the conflict of rights when there are conflicts among the rights in priority of construction projects of contractors,the bank mortgage,the rights for transfer request of commercial housing purchasers and the employee's claims of bankrupt enterprises.The second part is about the conflict of several contractors' right to claim priority for construction project and its solution.There are two main perspectives in theory and practice on the conflict of rights when several contractors claim the priority of the same construction project at the same time: some argue that the compensation should be made according to theorder of establishing time of the rights in priority of construction projects and some ask for equal compensation.After these two opinions,this dissertation argues that the actual construction person's rights in priority of construction projects should be prior to other legal contractors',that legitimate subcontractors' rights in priority of construction projects should be prior to the general contractor's,that construction contractors' and decoration contractors' rights in priority of construction projects should be prior to the design contractors'.The compensation of contractors in the same position should be made according to their proportion of claims.The third part is about the conflict of the rights in priority of construction projects and bank mortgage and its solution.The dissertation analyze the following four views in legal scholarship: mortgage priority theory,rights in priority of construction projects priority theory,establishing time priority theory and proportional liquidation theory.This dissertation demonstrate the rationality of the rights in priority of construction projects priority theory from the angle of the legislative purpose,the nature of rights,rights rank and value-added theory.The fourth part is about the conflict of the rights in priority of construction projects and the rights of commercial housing purchasers and its solution.This dissertation analyze three opinions in legal scholarship——consumers' rights priority theory,rights in priority of construction projects priority theory and compromise theory——and then propose to distinguish according to the notice registration.If house purchasers have conducted the notice registration,the rights of the purchasers are prior.If not,the contractors' rights in priority of construction projects are prior.The fifth part is about the conflict of the rights in priority of construction projects and the employee's claims of bankrupt enterprises and its solution.The dissertation analyze the following three views: the employee's claims priority theory,rights in priority of construction projects priority theory and equal compensation theory,and then demonstrate that it is necessary to give priority to the protection of the contractors' rights in priority of construction projects from the perspective of explanatory theory and the protection of rights and interests.