Rebalancing Of The Conflict In Mortgage And Priority Right In Construction Projects

There is a long history about the argument which right shall be first between the Priority Right in Construction Projects and the Mortgage.Although,The Supreme People's Court had established that the Priority Right in Construction Projects shall priority to Mortgage and other claims in the form of approval in 2002,which provides the basis for judicial practice and solves the difficult problem for the conflict between the two rights in the judicial practice to a certain extent.Unfortunately,there are many chaos in the construction projects and real estate business,which give a great test of judicial justice,because of there is no system of Engineering laws and regulations.Although the Priority Right in Construction Projects have the obvious effect in the protection of the contractor,especially for the construction workers,but there are more and more case that the contractor and the owner use the right to damage the interests of the mortgagee in the current economic environment also.So that,it is an urgent problem to think about how to properly balance the two right from the legislative level to achieve substantive fair of law.This article focuses on the way to rebalance the protection of the interests as a core problem,and starting from the specific forms of conflict of rights,consider that the Priority Right in Construction Projects have fierce conflict with the Mortgage of the Construction in Progress and the Mortgage after completion of the project,whichshould be timely adjusted.The article concludes that the Priority Right in Construction Projects shall be identified as Priority Right,because this is conforms to the theoretical system of the real rights for security of our country and can meet the practice requirements,by using the method of document analysis and case analysis and comparative study.The paper continue to analyze the rationality of the Priority Right in Construction Projects is prior to the Mortgage based on that the Property Right in Construction is defined as "Priority Right" clearly.But,there are much more conflict case arise between the Priority in Construction Projects and the Mortgage due to the legislation of the Priority in Construction Projects is too general.It is necessary to limit the right of Priority appropriate,and we can combining the advance notice register and registration together,clear the scope of claims which priority right guaranteed,limit the waiver and realization of the Priority Right in Construction Projects.Through these comprehensive treatment to achieve the real balance between the interests of the mortgage holders and the interests of the priority holders.