The plaintiff in this case is a construction enterprise and the defendant is a real estate developer. The defendant invested in the development of residential quarters in Shanghai, and the plaintiff won the bid through bidding procedures. In March 2003, the general construction contract was signed, stipulating that the underground part of the project would be funded by the plaintiff.

In April 2005, the plaintiff completed the project schedule agreed by both parties, and both parties settled the paid part of the project price, and both parties confirmed the paid project price. Due to the defendant's lack of funds, the two parties signed a supplementary agreement in April 2005 to offset the arrears of progress payment with the construction in progress and a 23-story house in the project. As the mortgaged house did not have the pre-sale conditions and did not go through the pre-sale permit procedures, both parties agreed to go through the pre-sale registration immediately after obtaining the pre-sale permit.

On June 5438+065438+ 10, 2008, when the construction progress was completed and the structure was capped, the plaintiff found that the whole house was sold to outsiders at a discount, and the pre-sale registration was handled.

In March 2009, the plaintiff filed a lawsuit in Shanghai High Court, requesting the court to protect the contractor's right to get the project price first, and to preserve and seal up the disputed house. The Shanghai Higher People's Court issued a civil conciliation statement on April 5, 20 10, confirming that the plaintiff had the priority to be compensated for the disputed house, and the defendant transferred the disputed house to the plaintiff's name and paid the relevant project funds.

The second part is the reply to case 9.

1. Evolution of laws and regulations related to advance notice registration

Advance notice registration refers to the agreement signed by the parties who buy or sell houses or other real estate rights. In order to ensure the realization of property rights in the future, they can apply to the registration authority for advance notice registration according to the agreement. For example, in the pre-sale of commercial housing, buyers can register the houses that have not yet been built in advance to restrict developers from selling or mortgaging the houses that have been sold again.

Article 20 of the Property Law, which came into effect on June 65438+1 October1July, 2007, stipulates that a party may sign an agreement to buy or sell the property rights of a house or other real estate, and may apply to the registration authority for advance notice registration according to the agreement. After the advance notice registration, if the obligee without advance notice registration agrees to dispose of the real estate, the real right effect will not occur. After the advance notice registration, the creditor's rights are extinguished or the application for registration is not made within three months from the date when the real estate registration can be carried out, and the advance notice registration is invalid.

On July 1 2009, Article 5 1 of Shanghai Real Estate Registration Regulations stipulated "advance notice registration", which provided an operational guide for both parties to protect themselves.

202 1 1 Article 22 of the Civil Code, which came into effect, is the same as Article 20 of the Property Law. Interpretation of the Supreme Court on the Application of the Title of Civil Code (I) Article 4 stipulates: "Without the consent of the pre-registered obligee, the transfer of real estate ownership and other real rights or the establishment of construction land use rights, residence rights, easements, mortgages and other real rights shall be determined in accordance with the provisions of the first paragraph of Article 22 1 of the Civil Code."

It is worth emphasizing that as early as April 2005, both parties signed the Supplementary Agreement to offset the arrears of progress payment with the projects under construction. At that time, there were no relevant laws and regulations to regulate this kind of property right compensation behavior.

2. The evolution of laws and regulations related to the priority of compensation for project price.

1 999+1October1day, Article 286 of the Contract Law stipulates that if the employer fails to pay the price as agreed, the contractor may require the employer to pay the price within a reasonable period of time. If the employer fails to pay within the time limit, the contractor may agree with the employer to discount the project or apply to the people's court for auction according to law, except that it is not appropriate to discount or auction the project according to the nature of the construction project. Priority should be given to compensation for the discount or auction price of construction projects.

There are lien theory, legal mortgage theory and legal priority theory about the nature of the priority right of compensation for project price in practice; In recent years, the theory of legal priority has been gradually recognized by people. In order to safeguard the interests of relatively weak contractors and prevent social stability caused by the interests of migrant workers when the project debts cannot be paid off, the law directly creates and stipulates this priority as a special priority.

As early as June 5438+065438+ 10, 2000, when lawyer Zhu Shuying undertook the first bankruptcy case of a foreign-funded real estate company in Shanghai, he proposed to the Xuhui District Court of Shanghai that the confirmed project progress payment should be given priority in the disposal of bankrupt property, and submitted Article 286 of the Application of Requests in Bankruptcy Procedure, which stipulated that the report on project arrears should be given priority. Xuhui District Court attached great importance to it, and specially invited Sun Haihong, vice president, to make a special report to the Supreme Court, which finally contributed to the promulgation of the Interpretation of the Supreme Court on the Priority of Compensation for Project Price on June 26, 2002.

The main contents of this explanation are as follows: 1. When trying real estate disputes and handling enforcement cases, the people's court shall, in accordance with the provisions of Article 286 of the Contract Law, determine that the contractor's right of priority in payment of the construction project price is superior to the mortgage and other creditor's rights. 2. After the consumer pays all or most of the money for purchasing the commercial house, the contractor does not enjoy the priority right of compensation for the project price of the commercial house to the buyer. 3. The construction project price includes the personnel remuneration, materials and other actual expenses that the contractor should pay for the construction project, excluding the losses caused by the breach of contract by the Employer. Four, the construction project contractor to exercise the right of first refusal for a period of six months, counting from the date of completion of the construction project or the date of signing the construction project contract.

Article 22 of the Interpretation of Applicable Laws in the Trial of Construction Project Contract Disputes promulgated by the Supreme Court on February 29, 20 18 stipulates: "The time limit for the contractor to exercise the priority of compensation for the construction project price is six months, counting from the date when the spontaneous contractor should pay the construction project price."

202 1, 1, 1 The effective Article 807 of the Civil Code stipulates that if the employer fails to pay the price as agreed, the contractor may require the employer to pay the price within a reasonable period. If the employer fails to pay within the time limit, the contractor may agree with the employer to discount or request the people's court to auction the project according to law, except that it is not appropriate to discount or auction according to the nature of the construction project. Priority should be given to compensation for the discount or auction price of construction projects.

On February 29th, 2020, 65438+2020, the Supreme Court promulgated "Interpretation on Applicable Legal Issues in the Trial of Construction Project Contract Disputes (I)", in which Article 36 stipulates that according to Article 807 of the Civil Code, the contractor's priority to be compensated for the construction project price has priority over the mortgage and other creditor's rights. Article 4 1 stipulates that the contractor shall exercise the priority of compensation for the construction project price within a reasonable period, but the longest period shall not exceed eighteen months, counting from the date when the spontaneous contractor shall pay the construction project price.

The reason why I list the evolution of laws and regulations on the priority of compensation for project price here lies in lamenting Zhu Shuying's pioneering work, super persuasion ability and Shanghai's open judicial environment! It is precisely because of the work of these pioneers that the progress of the legal system has been promoted!

3. Issues related to the priority of compensation for the project price

The main body of the right of priority compensation for project price involves the following aspects: first, the contractor who enters into a project construction contract with the employer can claim priority compensation; Second, individuals who directly conclude a construction contract with the employer can claim priority; Third, the contractor of the decoration project can claim priority, but it is restricted; Fourth, the surveyors, designers and supervisors who sign contracts with the employer for engineering survey, design and supervision do not enjoy priority; Fifth, the actual builder cannot directly claim priority from the employer.

The premise of exercising the priority of compensation is that the quality of the project is qualified. If the project quality is unqualified, it shall not be used or auctioned or sold. Whether the contract is valid or not has nothing to do with whether the priority is established. If the contractor fails to complete the contract due to the employer's reasons and requests to terminate the contract, and claims that the project price is given priority, it shall review whether the quality of the unfinished project is qualified; If the contractor can't provide the evidence that the completed part is qualified, it is necessary to determine whether it meets the contract and related construction standards through judicial appraisal of project quality.

Scope of the right of priority: According to Article 40 of the Interpretation on Applicable Legal Issues in the Trial of Construction Contract Disputes (I), the money that constitutes the construction cost enjoys the right of priority, and the interest, liquidated damages and damages of the overdue construction price do not constitute the construction cost and do not enjoy the right of priority. Because the essence of the project cost is price, which includes the factors determined by both parties through consultation, when determining the scope of exercising the priority of compensation, we should pay special attention to whether there is an agreement between the two parties afterwards, which will include the part that should not be included in the project cost, and falsely report the cost amount to obtain a higher priority of compensation, thus affecting the situation of other creditors.