Analysis On Legal Validity Of Contractor's Waiver Of Claim Priority Of Construction Payment

In recent years,with the rapid development of the construction industry,the phenomenon of arrears of project funds is frequent,which causes a large number of construction workers and other subjects to suffer damage to their legitimate interests,and the problem of "asking for salary" has even evolved into a group event.For this reason,Article 286 of the contract law of the people's Republic of China stipulates that the contractor has the priority to be compensated for the construction project price.In addition,the Supreme People's Court's "Reply on the Priority of Compensation for Construction Projects" and "The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Case of Disputing Construction Project Contracts(II)" are all related to the construction project price.The priority system has made more specific provisions and solved some of the legal questions that exist in the judicial application.However,there are still other problems to be solved.In practice in the field of construction engineering,in the process of approving loans,in order to ensure the safety of loan recovery,the bank,as the capital provider,usually uses its advantageous position to require the contractor to issue a commitment to give up the priority right to be repaid for the construction project price or directly sign a tripartite agreement with the employer and the contractor to give up the priority right to be repaid.If there is a dispute or even a lawsuit between the contractor and the employer,the determination of the effect of the Contractor's giving up the priority of compensation becomes the most important issue in dealing with the dispute of construction project price,because it is directly related to the confirmation result of compensation order and risk degree.At present,regarding the legal effect of the waiver,based on different considerations,there are different views in the legal world.Representatives include "abandon the valid theory","abandon the invalid theory" and "abandon the valid theory under specific conditions".In essence,the priority right of compensation for construction project price is a civil property right that should be settled first.Based on the principle of party autonomy,the contractor has the right to dispose of the priority right to compensation for construction project price.However,the priority to be paid for the construction project price also involves the survival and livelihood benefits of farm workers and other groups.Based on the measurement of benefits,in order to maintain social fairness and justice,protect the interests of disadvantaged groups,and based on the current situation of serious arrears in the price of construction projects in China,this article believes that,in principle,the contractor should be allowed to freely dispose of the priority payment right.However,the contractor's right to give priority to compensation for construction project prices shall be judged on whether the actual interests of construction workers are harmed.The effectiveness of the abandonment shall have certain conditions,and the specific conditions of the conditions shall be satisfied.In order to protect the legitimate rights and interests of themselves and third parties,the contractor cannot arbitrarily or arbitrarily give up the priority to be paid for the construction project price.Therefore,this article restricts the contractor's abandonment from two aspects: the entity and the procedure.Make the party's true intentions clear,inform the procedural publicly in a timely manner to inform the subcontractors of the following rights,and establish a registration system for the abandonment of the right to receive priority payment for construction projects.In addition,follow-up safeguard measures should be established to waive the priority to be paid for construction projects,a special loan account should be set up,and the flow of funds should be monitored by the bank.