Research On Conflicts And Resolutions In The Exercise Of The Right Of Priority Reimbursement Of Construction Project Prices

The right of priority to reimbursement of the construction project price is an important right of the contractor to protect its own interests,although the right of priority to be reimbursed for the construction project price has been continuously improved from the contract law stage to the civil code stage,but the conflict between it and other rights in its exercise is still inevitable.Starting from the subject and scope of the priority right to reimbursement of the construction project price,understand the conflict between the right of priority repayment of the construction project price and the mortgage right of the construction project under construction and the buyer’s right to expect,as well as the cause and form of the conflict between several subjects of the preferential right to reimbursement,so as to find a solution,so that the priority right to reimbursement of the construction project price and other rights can be realized to the greatest extent and the loss will be minimized.Priority right of repayment refers to the right of one of the creditors to receive priority in the existence of multiple creditors of the same debt at the same time.The object of the contractor’s priority compensation shall be the price discounted or auctioned for the construction project,so the rights granted to the contractor under article 807 of the Civil Code are uniformly defined as "the right of priority to be reimbursed for the construction project price".The right of priority to be reimbursed for the construction project price has the characteristics of priority of rights,legality of rights,specificity of the object of rights and non-registration.Although the Roman period did not form a modern sense of the right of priority to be reimbursed for the construction project price,the Roman law had a far-reaching impact,and its concept of fairness and justice was also accepted by other countries.The first time the right of priority to be reimbursed for construction projects appeared in China’s law was in Taiwan,where it underwent a total of five stages of improvement from the Contract Law to the Civil Code.As far as the subject of the right of priority to be reimbursed for the construction project price is concerned,the Civil Code gives the contractor the right of priority to be reimbursed,but there are still many controversial subjects of rights.The prospector and designer,from the perspective of the interpretation of the purpose and the interpretation of the legal intention,should not become the subject of the priority reimbursement of the construction project price,especially in judicial practice,the courts have mostly adopted a negative attitude towards their subject status;the actual construction of the main body status of the dispute is relatively more,in theory,the affirmation and negation have their reasonableness and inadequacies,and there is no uniform conclusion in judicial practice,so the actual builder cannot be treated with a "one-sizefits-all" method,and its subject status can be affirmed conditionally.There are similarities between the subcontractor and the actual construction person,but in judicial practice,most of them adopt a negative attitude towards the subcontractor,but they can still affirm the subcontractor with conditions.Although the contractor of the decoration and decoration project has clear provisions in the law,although there are different views,there is no disagreement in judicial practice on its priority in receiving compensation within the scope of the decoration and decoration project.The right of priority to be reimbursed for the construction project price is not exclusive to the contractor,but is the subordinate power of the main right to the claim on the project price,and the transferee of the construction project price should be the subject of priority repayment,and this view is also adopted in judicial practice.Prices of such a nature as interest,liquidated damages,and damages are expressly excluded from the right of priority in reimbursement of the construction project price.Although some scholars have advocated the principle of "integration of premises and land" to include it in the scope of preferential compensation,it is clearly excluded in judicial practice.Profit is the reasonable income of the subject of the preferential right to be reimbursed,and it is the basis for its survival in addition to the cost,and it should be included in the scope of preferential compensation,and it should also be included in the scope of preferential compensation in judicial practice.Work stoppages and losses of nest workers can be treated differently according to whether they are caused by the contractor’s reasons,and most of them are not treated differently in judicial practice,but are directly determined to be within the scope of preferential compensation.The quality assurance fund for construction projects,combined with judicial practice,shall be included in the scope of priority compensation when the quality assurance fund meets the conditions for refund.The mortgage right of the construction project under construction is the method by which the contractor mortgages the construction project under construction to a bank or other institution as collateral,and then obtains a loan,in the same construction project,the priority right to reimbursement of the construction project price is clear in nature,and the conflict of interest between the mortgage right of the construction project in progress has led to a conflict of order between the two.The buyer’s right of expectation is the buyer’s ability to resist other rights to the house after purchasing the commercial house and fulfilling the contractual obligations,and the conflict of interest and the off-plan system are the reasons for the conflict between the right of priority to reimbursement of the construction project price and the buyer’s right of expectation.In the subordination relationship between the priority right to reimbursement of several construction project prices,the theory of equal compensation may be more reasonable.Conflicts between these rights can be resolved in three ways.Restrict mortgage loans for construction in progress,limit the purpose,conditions,number of times and amount of loans,and provide other guarantees to increase the possibility of realizing the mortgage right of construction in progress without affecting the right of priority to be reimbursed for the construction project price.Raise the threshold for the pre-sale of commercial housing,restrict the pre-sale conditions of commercial housing,strictly supervise the pre-sale payment of commercial housing,ensure the realization of the rights of buyers,and reduce the conflict between the right of priority to reimbursement of the construction project price and the buyer’s right of expectation.From the aspect of judicial application,the contractor shall have a clear reason for waiving the right of priority to be reimbursed for the construction price,shall not harm the interests of the contractor and the third party,clarify the relationship between articles 28 and 29 of the Provisions on Enforcement and Reconsideration,and protect the legitimate interests of the buyer of ordinary houses.The dispute over the right of priority to reimbursement of the construction project price has both a theoretical level and a practical level,and a series of analyses have been made on the relationship between the rights from the subject to the scope,and relevant solutions have been proposed,hoping to provide solutions for the study of the priority right to reimbursement of the construction project price.