Study On The Applicable Problem Of Laws Relating To The Priority Right Of Compensation For Construction Project

In order to solve the long-standing problem of construction workers’ salary arrears in the construction industry,286 Article 4 of the Contract Law establishes the system of priority right for construction project.This system gives the contractor the right to receive the claims enjoyed by the contractor in priority,so as to promote the realization of the contractor’s claims and further alleviate the problem of salary arrears in the construction industry.However,the legislation lacks clear provisions on the nature,manner of exercise and period of exercise of the right to priority payment of construction price,which leads to the emergence of difficult questions about the exercise of this right in judicial practice.In the absence of unified guidance of the legislation,a large number of different judgments on the same case have emerged.In response to this,the Supreme People’s Court issued the "Interpretation of the Supreme People’s Court on the Application of Law to the Trial of Construction Contract Disputes(II)"(hereinafter referred to as "Interpretation II")and the "Interpretation of the Supreme People’s Court on the Application of Law to the Trial of Construction Contract Disputes(I)"(hereinafter referred to as "New Interpretation of Construction Contract I")in20211229.(hereinafter referred to as2021 "New Interpretation of Construction Contract I")。 The new judicial interpretation further refines the provisions of the right to priority of payment for construction works,but there are still omissions in 2021 the New Interpretation I of Construction Contract regarding the difficulties and pain points in judicial practice.Specifically,it includes :the nature of the priority right for construction project,the necessity or otherwise of the reminder procedure,the nature of the exercise period,the determination of the starting point of the enforcement period,the way to exercise the right and the application of the decoration project.The first chapter of this paper firstly discusses the mainstream viewpoints in the interpretation theory and suggests that the nature of the priority right for construction project is determined as the statutory priority.On the one hand,it emphasizes the nature of statutory priority to achieve the purpose of the system,and on the other hand,it advocates that the system should be moderately restricted in some specific issues to avoid unnecessary damage to other right holders.The second chapter of this paper discusses the necessity of reminder procedure,the nature of the enforcement period,the starting point of the enforcement period and the way of exercising the right in the order of the exercise of the right.It is clear that the exercise of the priority right for construction project shall be subject to the performance of the reminder procedure;the period of reminder shall be limited to15days;the period of exercise of the right to priority payment shall be the period of exclusion;the starting point of the period shall be confirmed by combining two factors,whether the parties agree on the time of payment and whether the project price is determined;the way of exercising the right shall include the parties’ negotiation on the discount and the confirmation of the right to priority payment to the people’s court.The right exercise method shall include negotiation between the parties and filing a lawsuit to the people’s court to confirm the priority right of payment.The third chapter is devoted to the problems in the enforcement procedures of the right of priority payment.The author has knowledge about the enforcement of the priority right to receive the construction price due to my internship experience in the court executive bureau.Therefore,in this chapter,we discuss the distribution of the property under construction,and clearly assume that the objects of the priority right to receive the construction price and the mortgage are different and should be paid separately for the auction price.Finally,because2021 the New Interpretation of Construction Contract I have made new provisions on the application of the priority right for construction project to the decoration works,and there are few scholars in the interpretation theory to discuss this part in detail.Therefore,the author discusses the definition of decoration and decoration works and the criteria of "discount or auction conditions" for 2021 the modification of decoration and decoration works in the New Interpretation of Construction Contract,and clarifies the scope of "decoration and decoration works" and whether The scope of "decorative works" and whether it has discount or auction conditions should be determined separately from whether the contractor is the owner of the building.