On Construction Proiect Priority Of Claim

Article 286 of the Contract Law promulgated by China in 1999 stipulated a system of the construction project priority of claim,which provides a legal basis for guaranteeing the realization of the contractor's project claims..However,the provisions of this article are not clear enough,and how they should be applied in practice,Scholars have different views and the courts have different opinions.Therefore,how to improve the legislation and how the judicial system should accurately apply the priority system of compensation for construction projects becomes a question worth considering.The author believes that it is of great practical significance to study the priority of construction project payment.Through the analysis of the nature and characteristics of this right,this paper considers the nature of the right to be a legal priority.Throughout the typical legislative experience abroad,Germany guarantees mortgages,France and Algeria with real estate priority,Japan with real estate first take privilege,Switzerland and Taiwan for legal mortgage,and US construction lien for construction contractors,to protect the construction project price.Combined with the legislative background,we adopted the advanced experiences from some foreign countries and areas.In Article 286 of the Contract Law,the priority of construction project payment was stipulated.Through comparative analysis and the relevant theories of legal hermeneutics,the author defines the right subject of the priority as the right holder of the project payment creditor.The scope of the priority should include the interest and profit,etc.,The time limit for exercising the rights shall be calculated from the date of expiration of the performance period of the project claims.In view of the many problems in practice,this paper attempts to make recommendations on the parts of China's current legislation that need to be improved through the above analysis.It is suggested that the twentieth chapter priority should be set in the compilation of property rights in the Civil Code(draft),and the nature of the priority of should be clearly defined as the statutory priority,and the right must be registered;Article 592 shall be amended in the contract draft of the Civil Code(draft),and the subject,scope,and term of the exercise shall be clearly defined.The starting point shall be determined as the date on which the performance period of the project payment rights expires,and the rights shall not be stipulated in advance;the Supreme People's Court may also pass the judicial Explain the provisions of the above issues.At the same time,it is also seen that under the existing laws,judges should adhere to the principles of integrity,harmony and rationality in the judicial practice.The author hopes that through the discussion of the above issues,it can provide some help for clarifying the subject of the priority,the scope of rights,the starting point of the exercise period,and how the rights are realized.