| The rapid growth of the fixed assets investment scale in China’s construction market,coupled with the long-term common business model of borrowing qualification and capital cushion in the field of engineering construction,makes the phenomenon of the developer defaulting on the project price become increasingly prominent.This phenomenon seriously affects the normal production and operation of construction enterprises,restricting the development of enterprises;Delay the overall progress of engineering construction and limit the development of construction industry;Preventing migrant workers from getting wages and salaries,causing social problems.In order to alleviate the above contradictions and protect the contractor’s legitimate rights and interests,the contract law of the People’s Republic of China(hereinafter referred to as the contract law)stipulates in article 286: "if the developer fails to pay the price as agreed,the contractor may demand the developer to pay the price within a reasonable time.If the developer fails to pay within the time limit,the contractor may enter into an agreement with the developer to reduce the price of the project,or may apply to the people’s court to auction the project in accordance with the law,except where the nature of the construction project is not suitable for discount or auction.The price of the construction project shall be paid in priority out of the discount or auction price of the project ".This article establishes the priority compensation system of construction project price in China and lays an important legal foundation for the subsequent detailed provisions of the system.Common practice and judicial practice in construction market,driven by the supreme people’s court in 2002 and 2019,has issued a "about construction project cost of approval of the priority of compensation(hereinafter referred to as the" reply ")and the supreme people’s court on the trial of construction project construction contract dispute case applicable law problem of(2)"(hereinafter referred to as the " judicial interpretation(2)for construction projects "),the two judicial interpretations of construction project price shall be applicable to the specific of the priority of compensation system elaboration and refactoring.To be sure,most of these regulations are progressive and applicable.For the first time,the approval stipulates the priority period for the payment of the construction project price to be compensated,so as to guarantee the legitimate rights and interests of the right holder and stakeholders.In the judicial interpretation of construction project(2),it is a breakthrough to make clear provisions on the exercise conditions,scope of rights and abandonment of the right of priority compensation for construction project price.The legal provisions in the above aspects have no obvious problems in judicial practice in recent years and can be well applied.However,there are still some deficiencies in the subject of the right of priority compensation of the construction project price and the part of the starting point of the time limit.There is still a wide range of disputes about whether or how to exercise the priority right of compensation for construction project price for the main body,the actual constructor,which exists widely in the construction market.Actual construction of this concept was first used in the construction of the supreme people’s court about the construction contract dispute case applicable law problem of "(hereinafter referred to as the" judicial interpretation(1)for construction projects "),put forward the concept,the purpose of actual construction is to protect people groups such as the broad masses of migrant workers wages to get legitimate rights and interests,if the actual construction person cannot exercise of construction engineering the priority of compensation with respect to price,will no doubt to such an adverse effect on protecting the interests of specific groups.Meanwhile,the exercise period of the priority right of payment for construction project price as stipulated in article 22 of the judicial interpretation of construction project(2)is six months from the date when the developer shall pay the construction project price,but how to determine the "date when construction project price shall be paid" is not specified.In practice,construction projects generally have a long construction cycle,and the payment of project price is in various forms.The determination of the priority starting point has become a difficult problem that affects the effective exercise of the priority right of construction project price.Based on practice,this paper focuses on whether the actual constructor should be the subject of priority compensation for construction project price and the starting point of priority compensation for construction project price.It is divided into four parts: the first part is the introduction,introducing the research background and significance of this paper and other basic issues.The second part is the empirical study,by combing the existing norms combined with the analysis of trial practice,summed up the existing problems in practice;The third part is the legal theory analysis of the application of the existing laws.From the theoretical point of view,it analyzes whether the actual constructors should become the main body of the priority right of compensation for the construction project price,and the starting point of the exercise period of the priority right of compensation for the construction project price.The fourth part is the Suggestions on the application of norms in judicial practice.Through the practical analysis and theoretical argumentation above,it puts forward Suggestions on how to deal with the two existing problems in judicial practice. |
