Study On Priority Right Of Compensation Of Project Price

There has been a long history of discussion on the related issues of the priority compensation system of project price.The Supreme Court has materialized the application details twice in the form of judicial interpretation,but there are still some issues worth discussing on the level of "ought" and "fact"."Project quality qualification",as an important prerequisite for obtaining the priority right of compensation of project price,is clearly recorded in judicial interpretation of construction contract(2).Invalid contract may no longer be the decisive obstacle to prevent the contractor from claiming the priority right of compensation.In order to adhere to the principle of relativity of the contract,the judicial interpretation of construction contract(2)limits the subject of priority right to be compensated to the contractor who signs the contract with the employer,and the actual builder is excluded from the subject of right,while the subrogation system provides the possibility for the actual builder to claim the priority right to be compensated for the project price.The priority compensation range of the project price is designated to be determined by the professional administrative code,and the project profit is obviously included in the priority compensation range;However,there is no provision on whether the three types of funds,such as quality retention money,capital payment and idling loss,should be compensated in priority.In the face of the legal nature of the establishment of the priority right to be compensated for the project price,the priority of the effectiveness and the strong opposition to the world,the lack of publicity system makes the right conflict between the mortgagee and the contractor has not been effectively balanced;The judicial interpretation gives the effect of the buyer’s real right expectation right against the contractor’s priority right of compensation,which is expanded and interpreted in practice,resulting in a large number of cases in which the right of return of the purchase money also has priority over the priority right of compensation of the project price.This paper selects the applicable premise,compensation scope and right sequence of priority right of project price as the research objects,establishes the guiding ideology of combining public policy theory with value-added theory,giving consideration to the administrative management order and following the law of construction industry,and puts forward solutions to the above problems.The first part of this article,the "Contract Act" the 286 th,the priority of compensation with respect to which the construction price is the administrative,the judicial interpretation of construction contract(1)","the judicial interpretation of construction contract(2)" the provisions of the construction price is the priority of compensation with respect to the carding,the contractor,the actual construction of invalid contract person can claim the priority of compensation disputes,which the construction price is derived from the contract shall be invalid,subcontract,illegal subcontract recognized illegality and appreciation of the value conflicts between interests protection,the priority of compensation with invalid contract conditions apply logic,actual construction argue that the priority of compensation lawsuit path which the construction price confirmation,is an important issue in this paper.The dispute over whether the project profit,quality retention money,capital payment and loss of idle work can be compensated in priority stems from the ambiguity of legal provisions and the misunderstanding of legal purposes.Therefore,it is necessary to distinguish the nature of compensation and clarify the scope of compensation.The priority right of compensation of the project price takes precedence over the mortgage and other creditor’s rights,which is clearly stipulated in the reply to the priority right of compensation of the project price.Payment for return as an ordinary creditor’s rights,but it can take precedence over the phenomenon of the priority of compensation with respect to which the construction price,derived from the jinan stones hill business contract dispute reply the expansion of the nature of the judicial interpretation file explanation,hypothec person,it is necessary to balance the interests between the contractor and the contractor with the person that buy a house against the boundaries of effectiveness should be clearly set.As priority,the lack of legal basis,mortgage legal system,the priority of compensation with respect to the attribute which the construction price is difficult to unity,shall be temporarily suspended legal attribute recognition,in which the construction price is the priority of compensation with respect to attributes cannot be concluded that,under the condition of selected public policy theory and value theory of combining the guiding theory,is used to discuss and solve the above problemsThe second part of this paper takes the validity of the contract and the identity of the subject as the research object.This paper differentiates the invalidity of the contract,and in combination with the existing effective legal provisions,clarifies the applicable logic of the contractor’s priority right of compensation under the guidance of the principle of discount compensation after the invalidity of the contract.At the same time,it also determines the litigation path for the actual builder who borrows the qualification to claim the priority right of compensation for the project price according to the "factual contract".And sub-contractor,illegal sub-contractor,due to the relativity of the contract principle,can not directly claim the priority of the project price compensation right,but can subrogation exercise the priority of the project price compensation right litigation path.This article third part to seek preferred payments which the construction price range as the research object,the profit model in engineering,engineering quality retention money,mat endowment money,stop dead loss can be the priority of compensation disputes were analyzed,based on value theory,combined with the construction and installation project cost composition,the construction project construction contract and contract price management interim provisions"and other relevant administrative competent departments under the state council department of engineering cost management rules,the following conclusions: project profit model should distinguish completed and the expected profit,the expected profit shall not seek preferred payments;The project quality retention money shall have the priority to be reimbursed,but if the project quality retention money is replaced by performance bond,project quality guarantee,bank guarantee and other means,the project quality retention money shall not have the priority to be reimbursed due to the nature of the project price.The compensation of capital fund should distinguish whether it is actually invested in the project construction;The loss caused by stop-work shall be the project price and shall be the contractor’s actual input into the construction of the project,and shall be paid in priority.In the fourth part of this paper,the research object is the relationship between the priority right of compensation of project price and the right of mortgage and the right of buyer.On the issue of right conflict with mortgage,the author puts forward the introduction of registration confrontation system.The contractor of effective contract has the legal condition of registration,and can be compensated prior to the mortgagee after registration.The contractor of invalid contract can only be compensated in proportion to the mortgagee because it does not have the realistic condition of registration.On the issue of the conflict with the right of the buyer,it is clear that the right of expectation of real right can be opposed to the right of priority compensation of the project price four applicable conditions,and can appropriately relax the application of the only housing conditions according to the needs of the buyer’s family life improvement;The provisions on the amount of the payment for the house purchase shall not be applied rigidly because of the developer’s malice in refusing the payment.And the right to claim for the return of the purchase money cannot take precedence over the right to receive compensation from the project price.