A Study On The Deadline Of The Right To Receive Priority Repayment In Construction Project

The deadline of the right to receive priority repayment in construction project involves whether the obligee can exercise the right,how to exercise the right and is the key for the obligee to grasp the right and exercise the right reasonably.Now the legal bases can be found about the deadline of the priority repayment in construction project are only the No.286 of contract law and the fourth point of the reply of the Supreme People's Court on issues concerning the application of law in the hearing of cases involving disputes over contracts on undertaking construction projects.While as for the nature of the period for exercising the right,whether the exercise of that right must pass through notice procedures and how long is the “reasonable deadline” the existing legal norms are still blank.To this,the theory and the practice is controversial,so that makes the contractor are often confused about what to do when exercising the rights.This article is based on the existing provisions of the deadline of the priority repayment in construction project.Through combining with engineering practice and the justice cases this article trys to find the shortage of the existing rules.And then put forward a proposal for consummating the period system of the priority of claim in construction project.This article will be divided into five parts except the introduction and the conclusion:The first part is the analysis about the shortage of the existing rules of the deadline of the priority repayment in construction project.Through the interpretation of existing provisions,it can be found that the period system of the priority of claim is not perfect.There are some problems on the period system,such as the nature of the period is not clear,the time period for exercising the right is unreasonable,whether the exercise of that right must pass through notice procedures is unknown and the “reasonable deadline” of as well as the starting-point of the right are all hard to decided.The second part is the study on the period for exercising the right to priority claim of construction.This part involves the nature and the length of the exercising period.For the nature of the period,it can be found through the different theory that it is scheduled period.As for the length of the period,although the existing judicial interpretation clear stipulates that the period is six months,from an engineering practice,it is obvious that it is unreasonable for the obligee.It will easily lead the obligee to lose the right because of exceeding the statutory period.Future legislation should consider entending the period for exercising the right to give the contractors a fuller time to exercise the right.The third part is the study on the notice period of the priority of compensation in construction project.From the literal interpretation,system explanation and the goal explanation method it can be found that within the existing institutional framework,sending a peremptory notice is not a preceding procedure for the contractor to exercise his right.Of course,considering the priority right with strong statutory,the future legislation may require the contractor to send a notice before exercising the right.What' more,recognizing the “reasonable period” should consider various factors such as the convention between the parties,the industry practice and the judges of similar cases and combine with specific case for discretion.The fourth part is a study on the starting-point of the deadline for exercising the priority claim in construction project.This part summarizes the tiral guidance made by different court on the starting-point of the deadline for exercising the priority claim,and makes a detailed analysis on the 123 cases which are from 15 provinces and are collected through China Judgements Online and Peking University law.Within the existing institutional framework,this part makes a classification on the starting-point of the deadline for exercising the priority claim in construction project.Specifically,when the construction project has passed the completion approval,the starting-point is the actual completion date of the project.If the project has been completed but is not acceptance,then the starting-point is the date that the payment deadline of project funds is expired.As for the project that hasn't been completed,if the date when the project is shutdown is before the completion date of the contract,the starting-point is the completion date of the contract.If the date when the project is shutdown is after the completion date of the contract,the starting-point is the date of contract termination.If the project hasn't been completed while the construction contract has been removed,the starting-point is the date of the termination of the contract.The fifth part will put forward a proposal for consummating the period system of the priority of claim in construction project.To consummate the period system of the priority of claim in construction project,the relevant legislation should make the nature of the period clearly and entend the period for exercising the right.It also should make it clear that notice procedures is a preceding procedure for the contractor to exercise his right.Then stipulate the “reasonable period” and adjust the starting-point of the deadline for exercising the priority claim.Specifically,under normal circumstances,the starting-point is the date that the payment deadline of project funds is expired.If the construction contract has been removed,the starting-point is the date of the termination of the contract.If it has gone through the legal proceedings such as lawsuit,arbitration or mediation,the starting-point is the date that the legal document determined when the payment deadline of project funds is expired.