工程价款优先受偿权之预告登记制度构建

The Construction of the Prior Registration System to Ensure the Priority to Receive Compensation of the Project Payment

《合同法》第286条确立了建设工程承包人工程价款的优先受偿权,以保障承包人债权的实现,但是该条款在适用中却处于"休眠状态",无法实现应有的立法价值。为保障交易安全,基于优先受偿权与预告登记制度的价值取向具有一致性,我国立法应借鉴德瑞等国的做法,将工程价款优先受偿权纳入预告登记制度,承包人就其优先受偿权的数额及相关事项进行预告登记后,在登记的数额范围内,工程价款请求权产生物权优先效力,可以对抗就该建筑物设定的抵押权及其他债权,未经办理预告登记的承包人同意而对建设工程进行抵押、转让等处分行为,不发生物权的效力。

The 286th rule of the Contract Law acknowledged the priority of the project contractor to receive the compensation of the payment to ensure the fulfillment of the contractor＇s creditor rights. However, the rule stays dormant in the application which makes it impossible to realize its value in legislation. In order to protect trading security, with regard to the consistency of the value orientation of the priority to be compensated and the prior registration system, the legislation in our country should use the practice of countries like Germany and Sweden for reference, i.e. to include the priority to receive compensation of the project payment into the prior registration system. Under this system, the contractor should register the amount of the payment which they should be compensated first. Within the amount registered, the pleading right of the payment has the priority to countermine the previosly set mortgag right and other creditor right of the construction. The behavior of the mortgage and attorney of the project without permission of the contractor who has registered in advance has no effect of real fights.