The Research Of The Constructor’s Privilege’s Judicial Application

Since article 286 of the Contract Law (Article 286 for short) proscribed the Constructor’s Privilege, the controversies about it is coming. Although the concerned judicial interpretation made by the SPC at the year 2002, the Privilege’s nature, subject, object, effect and the obligation guaranteed are still unclear, which led to trouble on the judicial application. Therefore, the interdisciplinary research method, empirical Study method and comparative study method were used during this research, in order to handle out problems in judicial practice.Chapter Ⅰ, the empirical investigation about the Constructor’s Privilege. With the study of 64 judgment document, there are following three questions in cases. First, the principle Article 286 causes the confusion under different circumstances. Second, the judicial interpretation’s fuzzy definition of the Constructor’s Privilege leads to the trouble on the judicial application. Third, different interests lead to measurable differences in the scale of the referee. Moreover, these problems are mainly concentrated on the Constructor’s Privilege’s exercising period.Chapter Ⅱ, the type analysis of different starting points of the Constructor’s Privilege’s exercising period. Based on the Chapter Ⅰ, after analyzing the conditions of contract in the "Standard construction tender documents" jointly promulgated by nine ministries, points out that the endless stream of different starting points in judicial practice, not only contrasts with the engineering practice but also results in more confusion on the judicial application.Chapter Ⅲ, the theoretical exploration about the nature of the Constructor’s Privilege. From the angle of comparative law research and systematic interpretation, concludes that in view of Chinese legal system using the dualistic mode to forsake the principle of equal claims aiming to protect the interests of the disadvantaged and social public benefit, Article 286 is one kind of statutory mortgage.Chapter Ⅳ, the reviews of concerned judicial interpretation. By using literal interpretation, systematic interpretation, historical interpretation, comparative law interpretation, points out that for the problem of the Constructor’s Privilege’s exercising period, judicial practice is supposed to apply the article 202 of the Property Law. Compared with Article 286, the concerned judicial interpretation runs in the opposite direction.Finally, the conclusion is advising to abolish concerned judicial interpretation and putting Article 286 into security interest system for the interpretation in the judicial practice.