建设工程价款优先受偿权争议及制度重建

Controversies on Priority Claim Right in Construction Projects and Its System Rebuilding

建设工程价款优先受偿权作为法定抵押权,其主体为建设工程施工承包人;担保范围仅限于承包人的实际支出费用;担保标的仅限于与建造工程债权有牵连关系的不动产标的物。同时,"不宜折价或者拍卖的建设工程"包括消费者已支付全部价款或者大部分价款的商品房和涉及国家根本利益的建设工程。该权利不以登记为其成立生效要件,成立于建设工程竣工之时,且承包人须向法院提起确认享有该权利的确权之诉。借鉴我国台湾地区承揽人法定抵押权制度,建议在以后的立法中明确建设工程价款优先受偿权为法定抵押权,明确实际支出费用的范围以及引入预为抵押权登记制度。

The priority claim right in construction projects is an important legal mortgage right, its subject being the construction contractor and its guarantee being limited to the actual expenses of the contractor. The subject of the guarantee is limited to those matters which are implicated in the relationship between the real estate and construction claims. The construction projects which should not go into auction include not only the construction projects which are all [）aid or paid most of the price, but also the projects which involve the fundamental interests of the state. Enrollment is not necessary to the priority claim right in construction projects as it is established when the projects are completed. But it needs an interpleaded cause if the contractors want to possess the right. By learning from the contractor legal hypothec system of Taiwan, China, we suggest that the priority claim right in construction projects should be declared as a legal mortgage right and both pre-mortgage registration system and its actual expenditures range must be determined.