Research On The Rule Of Priority Right For Construction Project

Article 286 of “Contract Law” stipulates that the contractor of a construction project has the priority to be compensated for the price of the construction project.This provision is considered to solve the long-standing problem of arrears of large amounts of project funds,and to protect the great interests of the contractor and the actual constructor feat.However,this legal system in the field of construction engineering was accompanied by a lot of controversy from the very beginning.Although this clause gives the contractor a right of priority for the construction project(hereinafter referred to as “the right of priority”),the legislation is still vague about the nature of the right,the subject of the right,and the way of exercising it,which not only causes the academic community to give priority to The endless theoretical controversy of the right to compensation has also led to difficult questions about the exercise of the right of priority in judicial practice.In addition,the Supreme People's Court's Interpretation on the Legal Issues Applicable in the Trial of Construction Project Construction Contract Dispute Cases(II)(hereinafter referred to as “Interpretation 2”),which was officially implemented on February 1,2019,(Referred to as the “Supreme Court”)has issued three judicial interpretations to specify the preferential right system in order to guarantee the contractor to implement this right.However,for the long-standing doubts and difficulties in the exercise of the right of priority compensation,“Interpretation 2” still misses,mainly including: the scope of the right subject,the effectiveness of the contractor's prior waiver of the right of priority compensation,and the start time of the right exercise period.This article is devoted to theoretical and empirical research on the exercise of the right of priority,on the one hand,to demonstrate the legal nature of the right of priority,on the other hand,to discuss the disputes over the application of rights,and to provide some solutions.The first chapter is an empirical study of the priority right to compensation.The purpose is to understand the judicial status and existing problems in the exercise of this right,and analyze the root causes of the problems.The author finds that in the judgment cases applying the priority compensation right,there are mainly the following problems: First,although after the implementation of the "Interpretation II",some courts' judgment positions tend to be consistent,but before their implementation,the judgment results are different;Secondly,the controversy over the application of priority compensation rights mainly stems from the lack of a clear definition of the attributes of rights.In this regard,at present,there are mainly three theories in the academic circle: "theory of legal mortgage","theory of priority",and "theory of lien on real property".From the perspective of comparative law theory,doctrine comparison argumentation and system interpretation,the author proposes that under the legislative background of China's guarantee system being more complete than the priority system,the priority right of compensation should be interpreted as a legal mortgage.The second chapter deals with the effectiveness of the act of giving up priority compensation rights.Regarding the effectiveness of the contractor 's agreement to abandon the priority right of compensation,the author believes that “Interpretation 2” tends to be “partially effective”.The contractor 's abandonment will not cause its own assets to deteriorate seriously and damage the interests of construction workers In the following,it should be regarded as effective,but it is difficult to define “damage to the interests of construction workers” in time,and it is expected that the legislation will respond to this.The third chapter is the subject dispute of the right of priority compensation for construction project price.The author mainly responds to the question of whether surveyors,designers,legal subcontractors and certain actual constructors can exercise the priority right of compensation in addition to the contractor,and also analyzes the problem of the actual construction person exercising the priority right of compensation.The fourth chapter is the start time of the time limit for the exercise of rights.This is the most complicated issue in practice.The author analyzes "Date of Payment" in Article 22 of the "Interpretation 2",combined with the current law and sample cases to classify the possible situations,and give different methods for reference.In summary,since Article 286 of the “Contract Law” and the subsequent three judicial interpretations have stipulated and refined the priority compensation system for construction projects,the exercise of the priority compensation right has been controversial in the theoretical and practical circles.The full text comprehensively demonstrates from the four levels of legislative status,questioning,theoretical analysis and empirical investigation,and proposes solutions,with a view to benefiting the practical operation in the field of construction engineering and providing reference for ensuring the effective application of relevant legal systems.