Study On The Prior Indemnification Of Construction Project

The 286th clause in the Contract law of the People's Republic of China (Contract law for short) regulates the prior indemnification right of construction project cost. The official written reply about the prior indemnification right of construction project cost from the supreme count (the official written reply for short) complete the regulation of the 286th clause in the Contract law. It regulates the order of the right actualizing and the right's extension particularly. The prior indemnification right of construction project cost is in allusion to the problem of the construction cost default and in order to protect the charger's benefit and accelerate the developing of the construction industry. The prior indemnification right of construction project cost protects the charger's benefit in some extent, and it is good to the developing of the construction industry.But what we should pay attention to is that the executing of this right can bring forward some complex problems, such as this regulation weakens the protection to the bank and the purchaser, and even affect the register and the revelation in our country. The author analyzes the problems of the executing of the prior indemnification right of construction project cost in the judicial practice and point out his own opinion. Then the author confirms the character of this right by analyzing the legislations in different country. And the author finds the differences between our regulation and other country's legislation and the disadvantages of our regulation. In the end the author points out the project to the methods of solving the problems. This article has limited "the project" "the project cost" and so on the concept, clarifies the judicature by this to be suitable exists many blurs place, strengthens the project cost first to receiver's compasses the power the serviceability. At the same time, also discussed the project cost in the article first to receive recompenses the power the nature question. The author while acknowledged our country project cost first receives recompenses the power the nature for priority, also pointed out our country this kind of national the and so on priority legislation design and France, Japan correlation legislation design has the important difference. The article is divided into four parts.Part one is the purport and confirming of the prior indemnification right of construction project cost. First of all, the author analyzes the theory value and practical purport of the prior indemnification right of construction project cost. Judging from relevance country and region legislation, the project cost contracting person has all given peculiar protection , has shown mainly for the priority (take privilege first) pattern and the legal mortgage pattern law to the construction project. This right rectifies the imbalance status of the contractor and the charger and supplies an important way to solve the problem of the construction cost default. But this provision stipulation too is rough, lacks may be operational, the court when settles a lawsuit, regardless of is in the entity or in the procedure has the barrier. As well as this judicial interpretation still has the insufficiency, has not been able to solve in the judicial practice difficult problem. And the research on this right is good to perfecting the Guarantee law of the people's republic of China and constituting the substance law. It accord with the open of the construction after entering the WTO in our country. In the next place, the author analyzes the practice problem of the regulation of the 286th clause in the Contract law and the official written reply.Pate two is the character of the prior indemnification right of construction project cost. The scholar has controversy on the prior indemnification right of construction project cost whether belongs to prior right or the legal mortgage right. The problem of the right character is not what it should be but it is what it is. Now that the legislation in our country has regulated the effectiveness and the extension of the prior indemnification right of construction project cost definitude, we should estimate the character of this right by the regulations. Before analyzing the character of this right, the author disprove the demonstrate manner of other scholars, and protest that we should confirm the character of this right by comparing manner. By comparing the different legislations the author brings out the conclusion that the prior indemnification right of construction project cost in our country belongs to prior right mode, and admits that our legislation design is different from other countries.Part three is the analysis on the two usual phenomena of the prior indemnification right of construction project. Before the regulation in the contract law and the official written reply, the right order is the revelation guarantee right first realizing. To two above projects costs first receive recompense the power to occur compete gather the question, if uses "the succession successively to decide order priority" the general principle not necessarily suits the Chinese national condition, from balanced safeguards the majority construction worker benefit the angle to embark, pays off the means according to each construction projects contractor's creditor's rights proportion is most superior. If the acceptance of work is unqualified, sends a package of person not only to be authorized to refuses to pay the project cost, moreover is authorized to requested the contractor undertakes breaks a contract the responsibility. The contractor actually because of qualified has not had no right after the approval to enjoy first receives recompenses the power, has pointed out the malpractice in here. But after the appearance of the prior indemnification right of construction project cost, the bank's hypothec even if registered, the charger's right is always prior to the bank's right, if the house cost has not been paid by 50% of the whole cost, their right is in danger. To the house purchaser, the best method to protect his benefit is paying more than 50% of the cost. And we should construct the beforehand register system to protect the purchaser's benefits.Part four is the legislation design of the prior indemnification right of construction project cost. The author have dissertated the disadvantages of the prior indemnification right of construction project cost in the part two and part three. In this part the author generalize the disadvantages in four aspects. Firstly, aggravating the care duty of the related oblige and add the dealing cost. Secondly, the design of the system gives the contractor and the charger the chance to use spitefully. Thirdly, in the long run, it is not good to the continuing developing of the construction industry. Fourthly, it is not good to the dealing safety. Our country project cost first receives recompenses the power the realization, should avoid with other already the guarantee real right conflict which registers, take male shows the principle to carry on the legislation design as the premise. The reason of these disadvantages is that the legislation of the prior indemnification right of construction project cost has not paid attention to the principal of revelation. The author thinks that to perfect this system we should spurn the viewpoint that the legal revelation is a revelation. Because in the estate guarantee area, the regulations in the law can't achieve the goal of the revelation. The author brings out that we should adopt the beforehand register system in the prior indemnification system of construction project cost. We should accept the creditor's rights form as the estate transfer mode. The register should be finished by the parties applying together. And we should use the request register system to protect the charger's benefit.