중국민법전의 건설공사대금에 관한 수급인의 우선변제권(建设工程价款优先受偿权)(제807조) - 중국의 논의와 우리 법의 시사점을 포함하여 -

This article deals with the priority right of compensation to payment of the construction price(article 807) under construction contracts for construction projects in the Chinese Civil Code(2020) along with the provisions of the Chinese Civil Code(2020)(Article 807, Sentence 3) and the newly released judicial interpretation, Interpretation of the Supreme People's Court on Issues concerning the Application of Law in the Trial of Cases Regarding Disputes over Construction Contracts for Construction Projects (1)(2020)(hereafter judicial interpretation(1). Focusing on the content of the provisions, we surveyed the priority Right of compensation in general, the legal nature of the right, and the main contents of the right, etc. A contract for the construction project is a contract under which a contractor carries out the project’s construction and the contract-offering party pays the price in return(Art. 788, sentence 1). According to Article 807, where a contract-offering party fails to pay the price in accordance with the agreement, the contractor may demand the contract-offering party to pay within a reasonable period. Where the contract-offering party still fails to pay the price upon expiration of the said period, the contractor may negotiate with the contract-offering party to appraise the construction project, or request the people’s court to sell the project through auction in accordance with law, unless the construction project is by its nature unsuitable for assessment or auction. The payment for the construction of the project shall be satisfied, in priority, from the proceeds obtained from the appraisal or auction of the said project. Regarding the priority right of payment of construction price, the Supreme People’s Court newly enacted the Judicial Interpretation (2020) (Articles 35-42) based on the provisions of the Civil Code to provide detailed information. According to the Judicial Interpretation, the contractor’s priority right of compensation for payment of construction price based on the provisions of Article 807 of the Civil Code takes priority over mortgages and other claims (Article 36). At present, a consensus has not been reached on the legal nature of this right, there are mainly 3 conflicting theories such as legal mortgage right, special priority right, or real estate lien (留置权). We reviewed the content in detail of each theory and their pros and cons were reviewed, in turn. Next, based on the Chinese Civil Code and judicial interpretation, we also reviewed in detail the subject, object, secured claim, priority with other claims, and execution of the right. Through the Chinese Civil Code and judicial interpretation, the recognition of the contractor’s priority right of compensation to payment for the construction price and discussions in China will lead to future discussions on the legal nature of the contractor's right to preferential payment (legal mortgage) as security for construction price under our law, especially as proposal de lege ferenda on contractor’s right to demand creation of mortgage on immovable which is object of contract for work(art. 666 of Korea Civil Act). We think the Chinese example can give several implications for specific operations in Korea such as priority, etc.