略论建设工程承包人之优先受偿权

建设工程发包人未按照约定支付价款的,承包人依法就该工程折价或者拍卖的价款优先受偿。以《合同法》第286条为依据,承包人优先受偿权的性质属于法定抵押权,其成立直接依据法律的规定,既不需我国要在当事人之间订立抵押合同,也不需要办理抵押权登记手续,成立的时间依据作为法定抵押权客体的抵押物是否具有不动产的特性予以认定。在建设工程上,法定抵押权和意定抵押权竞合时,应按照其相互间登记的先后确定顺位,因为以损害其他债权人的利益来保护承包人的建设工程款得以满足不符合立法精神。

On the Priority Right to Be Repaid of Contractor of Building Work

The party issuing contract of building work has the initiative to su ffer the payment according to the engineering cut rate or auction by law if he c ould not pay the payment due to the engagement.According to No286clause of Conta ct Law,the priority right to be repaid of contractor belongs to legal mortgage p ower,whose foundation is directly under the principle of law.It is unnecessary f or the party concerned to sign the contact of mortgage,and is also unnecessary f or them to carry out the register procedure of mortgage power.The time should be affirmed according to the mortgage thing of the power whether have the characte ristic of the real estate or not.In terms of building work,the concurrence of le gal mortgage and mortgage by conduct should be fixed by their order of register, because it doesn't match the lawmaking spirit to protect the party issuing cont ract of building work on the basis of injuring the benefits of other creditors.