Research On The Priority Right To Receive The Price Of Construction Works Of Actual Constructors

In China’s construction industry,the phenomenon of the contractor defaulting on the payment of the construction price to the construction unit is serious,and it is often more common for the actual builder in particular to be defaulted on the payment of the construction work.Article 807 of the Civil Code,which succeeds the 1999 Contract Law,provides that the contractor has the right of priority in payment for construction works,and this system plays an important role in rectifying the imbalance between the status of the contractor and the contractor and solving the problem of default in payment for construction works.In order to protect the interests of the actual builder and the group of construction workers behind it,that the actual builder can claim the construction price from the contractor by breaking the principle of contractual relativity,but it does not specify whether it can claim priority in payment of the construction price.The cases show that the courts around the world are not uniform in deciding the disputes in which the actual builder claims the priority of payment for construction works,and the problem of "different judgments for different types of cases" has not been solved,therefore,the study on the priority of payment for construction works of the actual builder has a more important practical significance.The thesis is divided into four parts,in addition to an introduction and a conclusion.The first part is a review of the actual builder and its priority right to receive the construction price.There are three types of actual builders: subcontracting,illegal subcontracting and actual builders with borrowed qualifications.The norms and trial practice of the priority right of the actual constructor for construction work show that although there are different interpretations of the application of Article 35 of the Judicial Interpretation of Construction Work(I)by different courts,it is not uncommon to see decisions supporting the priority right of the actual constructor to be paid.The second part is a review of the theoretical views on the priority right of the actual constructor.There are "negative" and "positive" theories on whether the actual constructor enjoys the priority right to be paid.Due to the complexity of the construction market,the "negative theory" has its reasonableness the consideration of contractual relativity is strictly observed,however its defect is that it ignores the existence of defacto contractual relationship between the actual constructor and the contractor and increases the difficulty of the actual constructor to be paid for the project.Although the "affirmative view" is inconsistent with the mainstream judgment,its reasonable point is to affirm the value created by the actual builder,and balance the interests of all parties is more in line with the concept of substantive fairness.On the basis of the comprehensive two views,firstly,the type of actual builder should be distinguished,so as to clarify each type of actual builder,not only to avoid "one size fits all",but also to adapt to the existing legal system;secondly,the actual builder should be affirmed to indirectly enjoy the benefits brought by the priority payment of the project price,so as to increase the possibility of the project price being paid off.The possibility of the construction price being settled.The third part,the reconstruction of the rules of the priority payment of the construction price for the actual constructor.There are differences in the rights of different types of actual builders: illegal subcontracting,as opposed to legal subcontracting,is prohibited by law and is therefore invalid.In the illegal subcontracting,the actual constructor and the contractor do not have a valid contractual relationship,and the claim they enjoy is not based on the price of the project as a contractor,but on the contractual negligence liability,so when the actual constructor of the illegal subcontracting does not enjoy the contractor’s claim for the price of the project,the priority right to payment has no basis for existence.The legal prohibition of subcontracting should be understood as a prohibition of the practice of transferring the entire project to other subjects and of breaking up the entire project and transferring it to a third party under the name of subcontracting.Therefore,in the case of legal subcontracting,the actual constructor shall enjoy the claim for payment of the project and the right to priority of payment.The basic criteria are to pierce the "veil" of dependency and to protect the bonafide contractor to the greatest extent possible,and to exclude from the priority of payment those who do not possess any construction qualifications at all.The fourth part,the path of realizing the priority right of the actual constructor.The actual constructor can realize the priority payment of the project price through subrogation: from the viewpoint of the attributes of the right enjoyed by the actual constructor,there is no theoretical obstacle to break through the relativity of the contract;from the viewpoint of the necessity of the priority payment of the actual constructor,the actual constructor enjoys the priority payment on the basis of the implementation of the construction of the project and the assumption of the responsibility for the quality defects of the project,and effectively balance the interests of all parties,in line with the substantial The value concept of fairness.The basic elements of "legal claim","subordinate right" and "non-exclusive" must be fulfilled in order to realise the right of priority by means of a subrogation action.The legal effect of subrogation is more reasonably attributed by the "entry rule".The innovation of this article lies in the following: firstly,the laws and regulations on the priority right to be paid for construction work of the actual builder have been systematically sorted out,collected and analyzed and organized into cases,in an effort to restore the practice of the priority right to be paid for construction work of the actual builder accurately by means of empirical evidence.Secondly,it has the practical significance of solving the dilemma of "different judgments for different types of cases" in practice.To analyze the two doctrines of "whether the actual constructor enjoys the priority right to be paid for the construction work",analyze their unreasonable points,take advantage of the shortcomings and refine the type of actual constructor.It is proposed that the actual constructor can realize the priority right to receive the construction price through the subrogation system.The shortcomings of this article are: its own academic level is limited,and it is not thorough enough to elaborate on the issues;the jurisprudential basis of this article has only been reviewed in the general literature of China,without analyzing more literature and foreign literature and cases,and the proposed improvement methods are still immature due to the lack of practical experience.