Research On The Priority Right To Be Paid Related With Construction In China

In the construction contract cases,the project arrears problem involves many factors,which is easy to produce adverse social impact.In order to solve this problem,as early as in 1999,China has enacted laws of right of priority compensation of construction project price.Subsequently,China promulgated a series of judicial interpretations and gradually established the system of the priority right to be repaid related with construction.The system has been running in China for many years and has achieved certain results,but the debate has never stopped either in academic circles or in judicial practice circles.There are different opinions on the right attribute,scope of application,subject,object and starting point of this right.The newly issued Civil Code in 2020 still includes this system,but it only modifies the expressions of individual words without any substantial changes.The above problems still exist and have not been solved.The disunity of understanding leads to the absence of clear standards in judicial adjudication,which will damage judicial authority in the long run.This paper will start from the institutional basis,be based on the existing laws and regulations,with judicial cases as samples and foreign legislation as reference,to perform indepth analysis of the existing problems of the system,and try to put forward solutions.Besides the first chapter,this paper consists of four chapters.The second chapter discusses the system connotation from three aspects: the value objective,right attribute and the establishment elements of the right.In terms of value objective,the author points out clearly that protecting the interests of the actual constructors is only one of the functions of the right of priority compensation,which should not be overemphasized.As for its nature,the author does not put hand to traditional aspects of lien and mortgage right,but return to the nature of "priority" and the upperseat concept of "creditor’s right".Furthermore,the author proposes that the project should be paid and the employer’s overdue payment are the essential conditions for this priority.In the third chapter,the author selects typical cases,and based on the judgment results of which finds out four kinds of problems: the subject of right is disputed,the scope of project price is not clear,the effective node is difficult to determine,and the conflict resolution mechanism is not sound.Then,the author analyzes the causes of the above problems.Moreover,in order to think from multiple perspectives,in the fourth chapter,according to the different disputed issues,the author investigates the referential significance of foreign legislation and judicature to China from the three aspects of subject,registration and abandonment,and concludes that currently it is not appropriate to enlarge the subject of this right in China,conditions for establishing a registration system are not yet permitted and the waiver of the right under some circumstances is void.On the basis of the above,the fifth chapter puts forward suggestions on limiting the subject of right,defining scope of application,determining the effective node and refining the provisions of conflict resolution.