Research On The Priority Right Of Compensation For Construction Project Costs

In order to protect the contractor to successfully realize the construction project price claims,the contract law of our country stipulates the contractor construction project priority.Although the law gives the contractor this right,but there are still many disputes about the right in the academic circles.And in practice,the problem is still serious,it is still difficult to achieve the priority.In order to solve the problems in theory and practice,it is of great significance to study the priority of the Contractor's construction price.This paper mainly discusses the nature of the priority of construction project,the conditions of establishment,the way of exercising,the effect and so on.Different countries have different legislative models for the priority of construction project.In civil law,there are two main modes:One is the priority mode which takes the French real estate priority and Japanese real estate work priority as the representative.The other is the mortgage model,which includes Germany preservation mortgage and the legal mortgage in Switzerland and Taiwan.While the Anglo American law countries adopt the legislative model of lien.Although the legislative models of different countries are different,the legislative purpose of protecting the construction contractor is the same.At the same time,in the first chapter,the author lists the domestic scholars'views on the nature of the priority of the Contractor's construction project price.The author analyzes and criticizes these three theories,and draws the conclusion that the priority of the Contractor's construction project price should be legal priority.The existence of rights must conform to certain elements.The second chapter mainly discusses the establishment of the priority from three aspects of the validity of the contract,the scope of the priority subject matter and the subject of the priority.Although the construction contract is deemed to be invalid,the contractor still has the right to request the employer to pay the price of the project and enjoy the priority of the construction project after the contractor has fulfilled the construction obligations as stipulated in the contract.Because contractors and construction workers paid their work and got paid,in line with the principles of fairness and good faith.The contractor has the right to request payment of the project price and the priority of compensation for the completed works.In the case of unfinished work,if the contractor has fulfilled the stage obligation or the unfinished project has the use value,the contractor should be allowed to have priority over the unfinished project.Which can not only protect the interests of contractors and construction workers,but also improve the efficiency of resource use.For some special construction projects which are related to the national security and social public interests,if the contractor is allowed to exercise the right of priority,the potential risks and adverse effects will be produced.At this point,such construction projects should be identified as "unfavorable discount,auction" project.For the surveyor and designer,because it did not participate in the specific construction of the construction project,and their rights to request the purchase price is established in the presence of construction projects,should not be listed as the subject of priority.The subcontractor and decoration contractor who participated in the project of the main building,because they had paid their work for construction projects,should be the subject of priority.The third chapter discusses the exertion of the priority.There are two cases for the establishment of priority.Upon completion of the project,the Contractor's priority is established on the date of completion of the project acceptance.For unfinished projects,contractor can enjoy the priority as long as the project meet the real estate components and be with a certain value of exchange and use after acceptance of the contractor.In practice,the settlement of the project cost after completion of the project is so complex and long that it is extremely unfavorable for contractor to calculate the priority for early.It is necessary for the contractor to achieve the priority of the contractor only if it is possible that the contractor will delay or refuse to pay the price of the project after the date of settlement of the project price or the date when the contract is agreed to pay the price.Because the exercise of the priority will be detrimental to the employer and the third party,the contractor cannot directly exercise the priority.When the employer defaults on the project payment,it should be preceded by a reminder.If the Contractor fails to pay the project payment after the contractor has urged the contractor,the contractor may apply directly to the court for the auction of the construction project without going through the proceedings.With regard to the priority of giving up,if the contractor voluntarily made the decision after weighing the pros and cons,it should respect the freedom of disposition of rights.After the contractor transfers the creditor's rights of the project,the assignee shall be allowed to have priority over the claims of the Project.Only in this way can the contractor obtain the funds of the assignee to pay the wages of construction workers.The fourth chapter discusses the effectiveness of the priority of construction project price.The loss of the existing benefits caused by the contractor to the contractor has in fact threatened the contractor's right to exist,so the scope of the contractor's project price priority should include the loss of the existing benefits caused by the employer to the Contractor.When the Contractor's priority conflicts with the general mortgage,based on the principle of absolute priority of the right to life,we should give priority to protecting the interests of the contractor.When there are multiple construction project price priorities on the same construction project,based on the principle of equality of rights arising from the same reason,the rank of each priority should be divided,and the corresponding project price creditor's rights shall be paid in proportion.When the Contractor's priority conflicts with the buyer's right to purchase the property,although all related to the right to life,Consumer's right to live is more important compared with the construction workers wages,and should be given priority protection.