Does the original contractor have priority? How the contractor exercises the statutory right of prio

Where, after the completion of the contract period, it is claimed that the subject matter of the original contracted operation is given priority under the same conditions, the people's court shall protect it.

Legal basis: In accordance with Article 13 of the 1999 Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Cases Involving Disputes over Agricultural Contracting Contracts, the people's courts shall protect the contractors who carry out professional contracting and bidding contracting and claim priority in contracting under the same conditions for the subject matter of the original contracted operation after the expiration of the contract period.

Article 13 of China's Agricultural Law also stipulates that after the expiration of the contract period, the contractor shall enjoy the priority right to contract the land, mountains, grasslands, wasteland and water surface that was originally contracted. It can be seen that in order to maintain the continuity of contracting, both laws and judicial interpretations have granted the original contractor the qualifications and rights to contract first under the same conditions.

Conditions for the contractor to exercise the statutory right of priority: If the employer fails to pay the price as agreed, the contractor may urge 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 negotiate with the contractor to discount the price of the project, or may request the people's court to auction the project in accordance with law, except that it is not appropriate to discount or auction the project according to the nature of the construction project.

[Legal basis].Article 807 of the Civil Code.

If the employer fails to pay the price as agreed, the contractor may urge 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 price of the project, or may request the people's court to auction the project in accordance with law, except that it is not suitable to discount or auction the project according to the nature of the construction project. The price of the construction project shall be compensated in priority with respect to the price of the project at a discount or auction.

1. What is the contractor's priority?

The contractor's right of priority refers to the right of the contractor to be compensated in priority if the employer fails to pay the project price to the contractor after the completion and acceptance of the project and fails to pay the price within a reasonable period of time after being urged by the contractor, the contractor may agree with the employer to discount the price of the project or apply to the people's court to auction the project, and the contractor has the right to receive priority compensation for the price of the project or the proceeds from the auction. Contractor priority is a legal right and is often referred to as a legal mortgage.

2. Conditions for the contractor to exercise the right of priority to be compensated

According to the provisions of the Contract Law, the contractor's exercise of the right of priority for compensation shall meet the following conditions:

1) The contractor must fully fulfill its obligations in accordance with the provisions of the contract, that is, the project is completed on time, the quality is qualified, and the completion acceptance is passed. If the contractor itself has breached the contract and the employer refuses to pay for the project, the contractor shall not enjoy the right of priority.

2) The employer fails to pay the price within the time limit agreed in the contract, and still fails to pay the project price within a reasonable period of time after being urged by the contractor.

3) The nature of the construction project is allowed to be discounted and auctioned. If the nature of the construction project is not suitable for discounting or auctioning, the contractor shall not exercise the right of priority.

When the above three elements are met, the contractor can exercise its priority in the following two ways: first, the agreement method, that is, the contractor will discount the price of the project in the agreement of the employer, and the price of the construction project will be compensated in priority at the discounted price; The second method of auction is that the contractor applies to the people's court to auction the project in accordance with the law, and the price of the construction project is compensated in priority for the auction proceeds.

With regard to the contractor's priority, it should be noted in judicial practice that, in the case of a construction project, when the contractor's priority and mortgage coexist, the contractor's priority takes precedence over the mortgage in order based on the principle that statutory rights take precedence over contractual rights. In order to protect the survival interests of the public, the contractor shall not exercise the right of priority even if such commercial housing can be auctioned in nature.

Legal analysis: the contractor's priority refers to the fact that the employer fails to pay the project price to the contractor after the completion and acceptance of the project, and fails to pay the price within a reasonable period of time after being urged by the contractor; The contractor may agree with the employer to discount the price of the project or apply to the people's court to auction the project, and the contractor has the right to receive priority compensation for the price obtained from the discounted or fictitious auction of the project.

Legal basis: Article 807 of the Civil Code of the People's Republic of China If the employer fails to pay the price as agreed, the contractor may urge 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 price of the project, except that it is not suitable for discount or auction according to the nature of the construction project; It is also possible to request the people's court to auction the project in accordance with law.

The price of the construction project shall be compensated in advance for the difference in the price of the project, the price of the project, or the price of the auction.

The priority of land contracting refers to the contracting or circulation of rural land, and the legal priority holder has the right of priority to contract the land. The "Rural Land Contract Law of the People's Republic of China" stipulates that when the right to contract and operate household land is transferred, the members of the collective economic organization shall enjoy the right of priority in contracting under the same conditions; If rural land is contracted in other ways, the members of the collective economic organization shall enjoy the right of priority in contracting under the same conditions.

Article 38 of the Rural Land Contract Law of the People's Republic of China The following principles shall be followed in the circulation of land operation rights: (1) In accordance with law, voluntarily and with compensation, no organization or individual may force or obstruct the circulation of land operation rights; (2) The nature of land ownership and the agricultural use of land shall not be changed, and the comprehensive agricultural production capacity and agricultural ecological environment shall not be damaged; (3) The term of circulation shall not exceed the remaining period of the contract period; (4) The transferee must have the ability to operate agriculture or the quality of the fire; (5) Under the same conditions, the members of the collective economic organization enjoy priority.

Legal analysis: (1) There is a legal and valid construction contract;

2) The project is a completed project and there is a completion acceptance certificate;

3) The amount of the project has been determined;

4) The contractor has given the employer a reasonable period of reminder (generally not less than three months).

Legal basis: Civil Code of the People's Republic of China

Article 799: After the completion of a construction project, the employer shall conduct acceptance in a timely manner in accordance with the construction drawings and specifications, the construction acceptance specifications and quality inspection standards issued by the state. If the acceptance is qualified, the employer shall pay the price as agreed and accept the construction project.

The construction project can only be delivered after the completion experience is qualified; If it has not been accepted or the acceptance is unqualified, it shall not be delivered for sale.

Article 807: Where the employer fails to pay the price as agreed, the contractor may urge 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 negotiate with the contractor to discount the price of the project in consultation with the contractor, or may request the people's court to auction the project in accordance with law, except that it is not appropriate to discount or auction the project according to the nature of the construction project. The price of the construction project shall be compensated in priority with respect to the price of the project at a discount or auction.