Research Study On The Transfer Of Priority Of Compensation For Construction Projects

At present,in the construction field,it is common for the contractor to fail to pay the project progress payment in time and in full according to the time agreed in the contract signed by the two parties.However,the contractor has advanced the funds.After the project is completed and accepted,the contractor still does not pay the contract.The contractor 's contract damages the contractor 's rights and interests,and even the generalization trend.This is very likely to cause the contractor to fail to pay wages to hard-working construction workers,and fail to pay suppliers the cost of materials in accordance with the contract.As a consequence,even the basic living rights of migrant workers are endangered,which may cause a series of social problems and become an unstable factor in society.In order to make the construction market operate in accordance with laws and regulations,promote the stable,healthy and orderly development of the construction industry,and effectively protect the legitimate rights and interests of contractors,construction workers and material suppliers,the Contract Law establishes the priority of compensation for construction project prices.The exercise of this paragraph's priority provides a legal basis.This clause establishes a contractor's right to give priority to compensation for construction project discounts or auctions.However,the provisions are too principled and general,and there is no uniform judgment standard.The understanding of the terms varies from place to place,which makes it applicable in practice.A lot of problems occurred.With the introduction of the Supreme People's Court's Interpretation on the Application of Legal Issues in the Trial of Construction Project Construction Contract Disputes(II)in 2018,the place of dispute over the priority right system has finally settled and the priority right system It is perfected day by day,and its applicability is greatly enhanced.Under the conditions that the creditor's rights transfer conditions are met and the rights and interests of others are not damaged,the right holder can freely dispose of their rights.The contractor and the issuer's claims for the construction price formed by the construction project construction contract are ordinary money claims in nature.It has personal specificity,and has the right to transfer its own project price claims to other people.However,after the creditor's right for the construction project price is transferred,if the contractor fails to pay off the contractual debt to the assignee who becomes the new creditor,can the assignee,as the new creditor,replace the contractor's position to claim the priority of the contractor,That is,whether the right of priority compensation can be transferred,there is no clear regulation,and there are also disputes in theory and practice.At present,there are two different types of judgments in theory and judicial practice: the first is that the priority to be paid for the construction price is a subordinate right that depends on the existence of the credit for the construction price.The subordinate right should be combined with the transfer of the main creditor's right The right of transfer and priority of repayment is transferred together with the assignment of the project's creditor's rights.Most courts hold this view in judicial trials.The second view is that the priority to be paid for the construction project is a right of personal dependence.It is exclusively owned by the contractor and cannot be transferred to a third party.The purpose of its establishment is to protect the contractor and the building behind it.Workers' rights and interests,which would damage the rights of the contractor and construction workers.The contractor's priority right of compensation will not be transferred after the transfer of creditor's rights to the project price,and the grantor cannot get the priority right of compensation.A few courts held this in judicial trials.view.As long as the creditor's right for the price of the construction project meets the conditions for granting the creditor's rights,it should be considered as transferable in principle,but whether the priority right can be transferred requires analysis of its nature to determine.At present,the theory of statutory mortgage and statutory priority are two mainstream theories in theory,and they are also more controversial.The lien theory is gradually diminishing because of its defects.The author prefers to interpret the right of priority as a legal priority,which cannot be transferred with the transfer of the main claim.There are many similarities between the issue of giving priority to the payment of construction rights and the issue of abandonment,both of which include the loss of the contractor's priority of compensation in effect,both reflecting the respect of the parties' autonomy and There are disputes in theory and practice as to whether the priority right can be transferred and whether it can be waived.The doctrine disputes are as follows: the first is that the law should respect the parties' autonomy of the parties.The contractor's abandonment of the right of priority is its punishment of its own civil property rights.The priority compensation system is established to achieve specific legislative purposes.It is recognized that contractors can give up their priority compensation rights in advance,which may sacrifice the rights and interests of stakeholders such as construction workers,and is contrary to the original intention of the legislation.give up.These two views correspond to two different views in the transfer of priority claims.The Supreme People's Court has made clear in the "Judicial Interpretation of Construction Contracts for Construction Projects(II)" the rules for adjudication of the right to waive priority,that is,the interests of construction workers must not be harmed.So,since there are so many similarities between the assignment problem and the renunciation problem,the assignment of the priority right can be borrowed from the practice of renunciation of the priority right,that is,if the project price and creditor's rights are transferred,priority should be paid.The rights are arbitrarily transferred together,whether this approach will harm the legitimate rights and interests of construction workers and related personnel,and if they will damage their legitimate rights and interests,they must not be transferred.In addition,when the creditor's rights to the project price are transferred,in order to avoid disputes,the contractor may be required to provide additional guarantees for the creditor's rights such as the wages of the construction workers.