Research On The Priority Of The Right To Receive Payment Of Construction Work

The establishment of the priority of the right to receive payment of construction work was realized by the article 286 of Contract Law,and the Supreme People’s Court made it more specific,which improved the role of this system in practice.But unfortunately,a lot of problems related to this system haven’t been concluded,such as its property,conflicts between other rights and so on,which impacts application of the system in practice directly.Based on the analysis of different views of all parties,this article puts forward their points of view and discusses the legal relationships of the right,and the author hopes this can do help to solve problems.This paper is divided into five parts,and the first part introduces the backgrounds and the related legislation of this right.In the following parts,the paper analyzes different perspectives and their supporting justification in academia.Then the author puts forward his own view and explains the conclusion in the last part.The second part analyzes the disputes over the juridical characteristics and the established time of this right.There exist three different points of view about its property,which are lien,priority and mortgage.Basing on the analysis of different theories,the author agrees with the view of priority.The author analyzes four views about the established time of this right,and thinks the view that the priority comes into existence when construction is established is the most reasonable.The third part discusses the legal relationship about this right,which includes its subject,object and scope.This part analyzes qualifications of the subject,such as surveyor,designer,actual constructor and subcontractor.The author gets the conclusion that the subject includes legitimate contractor,actual constructor and subcontractor.The analysis of object is not only about the definition of the construction project which is not suitable for discount or auction,but also the argument that land use rights and construction project which is not completed and qualified can be the object of this right.The author thinks that construction project which is not suitable for discount or auction should be outside of the scope of object.But construction project which is not completed but qualified should be in the scope.The author also thinks that the scope of the prior right contains the construction costs,interest and underwritten for the construction of the actual expenditures contractors paid for.The fourth part discusses the realization of this right,which mentions its validity period and the way of realization of the right.The paper proposes different views of the starting point in judicial practice through the analysis of validity period.One view is that the starting point should be identified as the date of termination of the contract,and another view regards the date of suspension of unfinished projects as the starting point.The way of realization of the right can be discount agreement or applying for court auction,which does not require judgment.The fifth chapter describes the conflict between this right and related rights and its solution.Established priority registration publicity system is an effective solution to the conflict between the prior right and lien or the right of private clients.Conflicts between the priority rights can be solved through the proportion of their respective claims.