The Research Of The Unfinished Constructor’s Privilege’s Judicial Application

Since article 286 of the Contract Law proscribed the Constructor’s Privilege,the controversies about it is coming.Although the effort made by the judicial application,the Privilege’s nature,subject,object,effect and the obligation guaranteed are still unclear,which led to trouble on the judicial application especially for unfinished construction.Therefore,the interdisciplinary research method,empirical study method and comparative study method were used during this research,in order to handle out problems in judicial practice.Chapter Ⅰ,the nature of the Constructor’s Privilege.Starting from the emergence and development of the Constructor’s Privilege,this paper considered that the Constructor’s Privilege should be defined as "priority" in the legal system of our country.Chapter Ⅱ,the application of the Constructor’s Privilege if the construction is unfinished.First,the paper defined unfinished construction,and analyze the legal basis of the Constructor’s Privilege.Then in accordance with the reasons for the completion of the unfinished construction,the paper explored the different circumstances of the contractor advocated the Constructor’s Privilege,and put forward a special case-illegal construction.Chapter Ⅲ,different starting points of the Constructor’s Privilege’s exercising period if the construction is unfinished.This part mainly consider from the legal and judgment document.,In the legal,the paper select the judicial interpretation made by the SPC at the year 2002,the construction contract judicial interpretation and the minutes of the meeting made by SPC at 2011.In the judgment document,the paper read 30 document,and analysis them.Chapter Ⅳ,conflict and solution of the Constructor’s Privilege and Other Rights if the construction is unfinished.When the Constructor’s Privilege conflict with hypothec,the Constructor’s Privilege should be paid off at first.Real estate buyers can negates the priority rights in construction projects,but it should be restricted.Finally,the conclusion is advising to define the Constructor’s Privilege as"priority".And enumerate starting points of the Constructor’s Privilege’s exercising period if the construction is unfinished in order to be chosen by the judge.