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Study On Priority Of Compensation In Construction Projects

Posted on:2019-07-10Degree:MasterType:Thesis
Country:ChinaCandidate:Q SunFull Text:PDF
Abstract/Summary:PDF Full Text Request
With the continuous development of the economy,the construction industry as a pillar industry in China's economic field,has an indispensable role in improving people's living standards and promoting economic and social development.However,in recent years,due to the construction industry mixed fish and dragon,coupled with the government's management is not standardized,and the corresponding laws are relatively lagging behind,resulting in frequent problems in the construction industry,of which the phenomenon of arrears of project funds is the most serious.The arrears of project funds directly affect the wages and remuneration of migrant workers,thus causing a series of adverse social problems.In view of this,Article 286 of the Contract Law promulgated in 1999 stipulates that the contractor has the priority to be compensated when the Contractor fails to pay the project price.However,due to the excessive principle of this provision,many problems have arisen in the application process.Therefore,the Supreme Court issued the "Approval of Priority for Compensation of Construction Project Prices" to give a judicial interpretation of the relevant issues.However,due to the complex legal relationship of construction project contracts,the judicial interpretation has not well solved the problems in practice.Because there are many controversial issues,and there is no unified understanding,leading to the judicial practice of priority in the application of confusion.This article is mainly divided into four parts to analyze the theory of priority compensation right of construction projects.The first part is about the legislative background,legislative basis and the qualitative analysis of the right of priority of construction projects.Combined with the legislative purpose of the provision,the social significance analysis shows that the provision is based on the principle of fairness,and its legal nature should be defined as legal priority.The second part mainly discusses a series of controversial issues faced by the contractor when he realizes the priority of compensation for the project price.It is clear that the scope of the subject,the object of the right,the scope of compensation,the period of exercise,the way of exercise,the effect of abandonment are the most common and controversial issues in practice,and there is no unified provisions.It is concluded that the subject of right should not include the investigators and designers,and the construction personnel with invalid contracts and the contractors who have not completed the construction should be included in the subject of right.Strict restrictions should be imposed on items that should not be discounted or auctioned in the object of rights.The scope of compensation should include the profits that enterprises deserve,and the premium should also be compensated first.The starting point of the exercise period should be exercised within six months from the date of the expiration of the creditor's rights of the project price,so as not to damage the interests of the contractor.If the contents of the priority are not disputed by the two parties,they can directly apply to the court for auction without litigation.The validity of the party's prior abandonment of priority should be recognized as valid in principle and invalid when it impairs the interests of others.The third part mainly discusses some ways to deal with the conflicts between the contractor's priority and other rights.When conflicts between priority and mortgage occur,priority should be due to mortgage.In case of conflict with the rights of consumers,the contractor's priority should be limited,not against consumers,but the definition of consumers should be narrowed.At the same time when many contractors advocate the right of priority,the priority should be paid according to the proportion of bonds.The fourth part is mainly on the basis of the previous analysis,in view of the existing problems,put forward some suggestions to improve the priority system,first of all should be clear about the nature of the right,secondly,should pay attention to protect the interests of contractors,but also strengthen the protection of other stakeholders,and finally,should improve the project security guarantee.System to reduce risks in the field of construction.
Keywords/Search Tags:construction projects, priority, mortgage, equity principle
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