浅论建设工程价款优先受偿权
发布时间：2018-09-10 21:42
【摘要】： 1999年颁行的《合同法》第286条标志着一项新的民事权利---建设工程价款优先受偿权的诞生。2002年6月,《最高人民法院关于建设工程价款优先受偿权问题的批复》对《合同法》第286条所规定的权利效力、行使期限等做出了明确的司法解释,进一步完善了这一权利。本文围绕着建设工程价款优先受偿权出台的背景及意义、权利性质、构成要件、权利范围、法律适用、权利冲突以及我国建设工程价款优先受偿权的立法完善等七个方面对这一民事权利作了论述。 文章开篇以具体的数据和事例描述了现阶段我国建筑领域施工企业工程价款被拖欠的严重现状,以及对广大农民工、建筑企业、乃至整个建筑业和国民经济的稳定和发展所产生的巨大负面效应。通过分析比较我国建设工程价款优先受偿权出台前后的立法状况,指出了该权利保护弱势群体,维护社会稳定,实现法律的公平和诚信的立法目的及意义。 文章第二章从比较法的角度和中国目前的立法现状出发,分别驳斥了将建设工程价款优先受偿权的性质界定为法定抵押权和留置权的说法,着重论证了应将该权利定性为优先权的理论根据。 文章第三、四、五章对该权利的构成要件、工程价款和标的物的范围限制、实践中的行使条件等依次作了归纳。并结合建筑业的实际状况,对“垫资”款和“烂尾楼”的工程价款能否享有优先受偿权等热点问题进行了深入的探讨。 考虑到在实务中,建设工程价款优先受偿权常常与其他权利发生冲突,笔者在文章的第六章用整章的篇幅描述了该权利与抵押权、商品房买受人的请求权、税收优先权以及其他建设工程优先权人之间发生竞合时,各种权利的平衡和优先次序。 最后,针对我国建设工程价款优先受偿权的立法现状,笔者在参照国内外的相关立法和专家学者的理论基础上,结合本人在建筑业多年的从业经验,提出了设立优先受偿权登记公示制度、增强可操作性等多个方面完善建设工程价款优先受偿权制度的设想。
[Abstract]:Article 286 of the contract Law, promulgated in 1999, marks the birth of a new civil right-the priority right to payment of construction project price. In June 2002, the written reply of the Supreme people's Court on the issue of priority payment of Construction Project Price The validity of the rights provided for in article 286 of the contract Law, The exercise time limit makes the clear judicial explanation, further consummates this right. This article revolves around the background and significance, the nature of the right, the constituent elements, the scope of the right, and the application of the law. This civil right is discussed in seven aspects, such as the conflict of rights and the legislative perfection of the priority right of payment for construction project in our country. At the beginning of the article, with concrete data and examples, the paper describes the serious situation of the construction enterprises in our country in which the project price is defaulted at the present stage, as well as the large number of migrant workers and construction enterprises. Even the entire construction industry and the stability and development of the national economy produced a huge negative effect. By analyzing and comparing the legislative situation before and after the introduction of the preferential payment right for construction project in China, this paper points out the legislative purpose and significance of the right to protect the vulnerable groups, maintain social stability, and realize the fairness and honesty of the law. In the second chapter, from the perspective of comparative law and the current legislative situation in China, the author refutes the view that the nature of the priority right of payment for construction project is defined as legal mortgage and lien. The theoretical basis on which the right should be characterized as priority is emphatically demonstrated. The third, fourth and fifth chapters summarize the constitution of the right, the scope limitation of the project price and the subject matter, and the conditions of the exercise in practice. Combined with the actual situation of the construction industry, the hot issues such as whether the project price of "cushion capital" and "uncompleted building" can enjoy the priority of compensation are discussed in depth. In view of the fact that in practice, the priority of the construction project price is often in conflict with other rights, in the sixth chapter of the article, the author describes the right and the mortgage, the claim of the buyer of the commercial house, in the sixth chapter of the article. The balance and priority of various rights when competing between tax priority and other construction priority holders. Finally, in view of the current legislative situation of the priority right of payment of construction project price in our country, the author, referring to the relevant legislation at home and abroad and the theoretical foundation of experts and scholars, combined with my working experience in the construction industry for many years. This paper puts forward the idea of setting up the system of registering and publicizing the priority compensation right and enhancing the maneuverability and so on, and perfecting the system of the priority compensation right of the construction project price.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D923.6
本文编号：2235693
[Abstract]:Article 286 of the contract Law, promulgated in 1999, marks the birth of a new civil right-the priority right to payment of construction project price. In June 2002, the written reply of the Supreme people's Court on the issue of priority payment of Construction Project Price The validity of the rights provided for in article 286 of the contract Law, The exercise time limit makes the clear judicial explanation, further consummates this right. This article revolves around the background and significance, the nature of the right, the constituent elements, the scope of the right, and the application of the law. This civil right is discussed in seven aspects, such as the conflict of rights and the legislative perfection of the priority right of payment for construction project in our country. At the beginning of the article, with concrete data and examples, the paper describes the serious situation of the construction enterprises in our country in which the project price is defaulted at the present stage, as well as the large number of migrant workers and construction enterprises. Even the entire construction industry and the stability and development of the national economy produced a huge negative effect. By analyzing and comparing the legislative situation before and after the introduction of the preferential payment right for construction project in China, this paper points out the legislative purpose and significance of the right to protect the vulnerable groups, maintain social stability, and realize the fairness and honesty of the law. In the second chapter, from the perspective of comparative law and the current legislative situation in China, the author refutes the view that the nature of the priority right of payment for construction project is defined as legal mortgage and lien. The theoretical basis on which the right should be characterized as priority is emphatically demonstrated. The third, fourth and fifth chapters summarize the constitution of the right, the scope limitation of the project price and the subject matter, and the conditions of the exercise in practice. Combined with the actual situation of the construction industry, the hot issues such as whether the project price of "cushion capital" and "uncompleted building" can enjoy the priority of compensation are discussed in depth. In view of the fact that in practice, the priority of the construction project price is often in conflict with other rights, in the sixth chapter of the article, the author describes the right and the mortgage, the claim of the buyer of the commercial house, in the sixth chapter of the article. The balance and priority of various rights when competing between tax priority and other construction priority holders. Finally, in view of the current legislative situation of the priority right of payment of construction project price in our country, the author, referring to the relevant legislation at home and abroad and the theoretical foundation of experts and scholars, combined with my working experience in the construction industry for many years. This paper puts forward the idea of setting up the system of registering and publicizing the priority compensation right and enhancing the maneuverability and so on, and perfecting the system of the priority compensation right of the construction project price.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D923.6
【引证文献】
相关硕士学位论文 前1条
1 白宗芹;建设工程合同中工程价款优先受偿权研究[D];广东商学院;2012年
，本文编号：2235693
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