论建设工程款优先权

发布时间：2018-03-05 14:02

本文选题：优先权　切入点：法定　出处：《西南政法大学》2012年硕士论文　论文类型：学位论文

【摘要】：近年来，由于国家宏观经济政策调控力度加大，执行史上最严厉的调控政策——限购令等系列措施，我国房地产业逐渐转入低潮，，房地产公司房屋面积销售量及销售金额出现了大幅度的下降，又由于房地产项目资本周转周期较长，银行融资也困难，导致很多小型开发商资金链断裂，开发商拖欠承包人建设工程款，承包人拖欠农民工工资的现象日渐增多，法院受理相关案件的数量也在逐步增多。此种社会问题已日益成为倍受关注的焦点。1999年10月1日，我国实施的《合同法》第286条，就建设工程款优先权作了专门规定：“发包人未按约定支付价款，承包人可以催告发包人在合理期限内支付价款。发包人逾期不支付的，除按照建设工程的性质不宜折价、拍卖的以外，承包人可以与发包人协议将该工程折价，也可以申请人民法院将该工程依法拍卖。建设工程的价款就该工程折价或者拍卖的价款优先受偿。”1之后，2002年6月最高人民法院又对《合同法》第286条的适用作出了《最高人民法院关于建设工程价款优先受偿权问题的批复》（以下简称《批复》），对承包人建设工程款优先权的行使范围、期间等进一步明确化。但是由于相关规定还比较笼统，实务界和理论界对该制度的有些问题仍然存在诸多争议。特别是近年来，房地产行业由于国家宏观调控的原因，发生了深层次的变化。因此，在房地产行业面临严厉的政策调控之下，讨论建设工程款优先权制度有着深远的理论和实践意义。本文试图从优先权的概念、法律属性及其特征开始讨论，分析建设工程款优先权的构成要件及其行使期限，并通过实务中的具体案例进行分析，最后提出完善建设工程款优先权制度的一些建议。本文共分六个部分。
[Abstract]:In recent years, due to the intensification of national macroeconomic policy control and the implementation of a series of measures such as the most severe regulation policy in history, such as the purchase restriction order, the real estate industry in China has gradually turned into a low tide. The sales volume and the amount of sales of real estate companies' housing area have dropped by a large margin, and because of the long capital turnover period of real estate projects and the difficulty of bank financing, many small developers have broken the capital chain. The phenomenon of the developers defaulting on contractors' construction works, the phenomenon of contractors defaulting on migrant workers' wages is increasing day by day, and the number of cases handled by the courts is also gradually increasing. Such social problems have become the focus of more and more attention. In October 1st 1999, Article 286 of the contract Law, implemented in China, makes a special provision on the priority of construction payment: "if the contractor fails to pay the price as agreed, the contractor may be called upon to pay the price within a reasonable period of time. If the contractor fails to pay the price within a reasonable time limit, Unless it is not appropriate to discount the price according to the nature of the construction project, the contractor may agree with the contractor to discount the project by auction, It may also apply to the people's court to auction the project in accordance with the law. The price of the construction project will be preferentially compensated for the discount of the project or the price of the auction. "1. After that, in June 2002, the Supreme people's Court made a decision on the application of Article 286 of the contract Law. The "reply of the Supreme people's Court on the issue of the priority of the right to receive compensation for Construction Project Price" (hereinafter referred to as "approval"), the scope of exercise of priority over construction funds of the contractor, However, because the relevant regulations are still relatively general, there are still many disputes about some problems in the system among the practical and theoretical circles. In particular, in recent years, the real estate industry has been subjected to the reasons of the state's macroeconomic regulation and control. Therefore, it is of profound theoretical and practical significance to discuss the construction project priority system under the severe policy regulation in the real estate industry. This paper attempts to discuss the concept of priority from the perspective of the concept of priority. The legal attribute and its characteristics began to be discussed, the constitutive elements of the priority of construction project and the time limit for its exercise were analyzed, and the specific cases in practice were analyzed. Finally, some suggestions are put forward to improve the priority system of construction funds. This paper is divided into six parts.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6

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