In fact, existing laws, including the Civil Code, have not yet established a uniform priority system, and the protection of priority is achieved through the provisions of special law. Therefore, the understanding of priority can only be differentiated according to different specific legal provisions, combined with the purpose of establishing the priority system, and according to the purpose, characteristics, establishment requirements and basic rules of the legislation. Some of the priorities provided for in the specific laws in force can be found at:
Paragraph 1 of Article 25 of the Maritime Law stipulates that "the priority of the ship shall be repaid before the lien of the ship, and the mortgage of the ship shall be repaid after the lien of the vessel." Article 22 of the Civil Aviation Law stipulates that "the priority right of civil aircraft shall be repaid before the mortgage right of civil aircraft." Article 113 of the Bankruptcy Law stipulates that: "The bankruptcy estate shall pay off the bankruptcy expenses and common debts in the following order after giving priority to the repayment of bankruptcy expenses and common debts: (1) the wages, medical treatment, disability allowance and bereavement expenses owed by the bankrupt person to the employees, the basic endowment insurance and basic medical insurance expenses that shall be included in the personal accounts of the employees, and the compensation that shall be paid to the employees according to the laws and administrative regulations; (2) the social insurance premiums owed by the bankrupt other than those provided for in the preceding paragraph and the taxes owed by the bankrupt; (3) Ordinary bankruptcy creditor's rights. If the bankruptcy estate is insufficient to satisfy the claims in the same order, it shall be distributed proportionately. The salaries of directors, supervisors and senior managers of a bankrupt enterprise shall be calculated on the basis of the average wages of the employees of the enterprise. ”
In addition, the Civil Code stipulates the right of first refusal of co-owners and tenants of houses, the priority of floating charges, the priority of technical achievements of duties, the priority of applications in the field of intellectual property, the right of priority under the Rural Land Contract Law, the right of first refusal to purchase equity under the Company Law, the priority right of partners to transfer partnership property under the Partnership Enterprise Law, and the priority of taxation over unsecured claims under the Tax Collection and Administration Law.
Is the priority right to repayment of the construction project price a creditor's right or a real right? There has been controversy in practice. At present, there are three main points of view:1According to Article 453 of the Civil Code, which not only has a specific time limit, but also stipulates that if the debtor fails to perform within the time limit, the lienholder may agree with the debtor to discount the value of the retained property, or may receive priority payment for the price obtained from the auction or sale of the retained property. 2.The second view is the most competitive, which regards the right of priority for payment of the project price as a legal mortgage right, which is obtained in accordance with the law. Professor Liang Huixing and Professor Wang Limin both supported this view. 3.The third view is that the contractor's priority right to compensation is a construction priority, which is essentially the same as the priority of ships and aircraft.
Judge Wang Zhiping of the Supreme People's Court held that neither the first nor the second view is advisable. The first view regards the priority right of payment of the project price as a trade right of interest, and the defect of this view is inconsistent with the provision that the right of retention only applies to movable property under the current law. The second is to regard the priority right to be compensated for the project price as a statutory mortgage, and the defect of this view is that if it is regarded as a statutory mortgage, if it is interpreted that such a mortgage does not need to be registered and publicized, that is, according to the law, the mortgage can only arise by Yongguan agreement, and there is no provision for the circumstances under which the mortgage right arises due to a factual act.
Therefore, the Supreme People's Court generally adopts the third-body view. Of course, the author does not agree with this view of the Supreme People's Court.
There are also three views on this, one is that the mortgage has priority. The basis is Article 402 of the Civil Code: "Where the property specified in Items 1 to 3 of the first paragraph of Article 395 of this Law is mortgaged or the building under construction as provided for in Paragraph 5 of this Law, the mortgage registration shall be completed." The mortgage is created at the time of registration. ”
One view is that the price of the project has priority and the right to be compensated has priority. The following four reasons are given: (1) registration is not a condition for the right of priority to be compensated for the project price, and China's Civil Code does not stipulate that the right of priority for the payment of the project price must be registered; (2) The priority cannot be judged according to the time when the right is generated and established, and the priority cannot be judged according to the time when the priority of the project price is generated and the time when the mortgage is established, as stipulated in Articles 414 and 415 of the Civil Code; (3) Consistent with the provisions on the priority of ships and civil aircraft; (4) Consistent with other judicial interpretations, Article 27 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsideration Cases by the People's Courts (2020 Amendment) stipulates that: "The applicant for enforcement shall enjoy the priority right to be compensated against the security interest of the outsider in accordance with the law, and the people's court shall not support the objection to the exclusion of enforcement raised by the outsider, unless otherwise provided by law and judicial interpretation." ”
One view was that priority should be given in the order in which they were established.
Article 2 of the now-defunct Reply of the Supreme People's Court on the Issue of the Priority Right to Compensation of Construction Project Prices stipulates that after a consumer has paid all or most of the money for the purchase of a commercial house, the contractor's priority right to be compensated for the construction price of the commercial house shall not be against the buyer. According to this provision, the buyer of the consumer commercial housing has super priority, but the Legislative Affairs Committee of the Standing Committee of the National People's Congress believes that the law does not provide for this and it is appropriate to deal with it on a case-by-case basis, and this issue is to be handled by the judicial interpretation of the enforcement objection.
The interpretation stipulates that discounting and auction are two ways to exercise the priority right to be compensated for the project price. However, the amount of the project discount will inevitably need to be negotiated between the two parties, and if the two parties collude, they can agree on a high **, which will inevitably affect the mortgagee and other creditors. Therefore, whether the priority right to be compensated for the project price can be determined by agreement or mediation is also a controversial issue in practice. The mainstream view is that the right to determine the priority of the project price by way of discount or mediation is private and cannot protect the interests of the third party, and the priority of the project price itself does not need to be registered, which will inevitably lead to the abuse of this right.