作者：许光链接：https://www.zhihu.com/question/26687074/answer/571943622来源：知乎著作权归作者所有。商业转载请联系作者获得授权，非商业转载请注明出处。When the proprietor fails to pay the agreed construction price at the time set by the construction agreement, the contractor shall be allowed to use different measures to obtain their remuneration. As far as Nanjing Construction Lawyer knows, one of the most effective measures is to file a lawsuit before the local court, requesting to exercise the right to Construction Project Price Priority Claim (CPPPC), as the Contract Law provides for. I will discuss the details in the following text.当业主方未能向承包人如约按期支付工程价款，承包人可选择多种方式以取得建造工程的合理报酬。就南京工程律师所知，最有效的方式之一是向人民法院提起诉讼，要求实现专属于承包人的工程价款优先受偿权，这是我国合同法所特别规定的。我将在下文对此进行详细介绍。According to Chinese Contract Law, if the proprietor fails to pay the construction project price, after preliminary notification made by the contractor, when the period set up in the notification as a reasonable period for payment expires, the contractor then is entitled to evaluating the construction project and convert its price in form of money. The contractor is also entitled to applying for court’s decision to allow the project to be put on auction, and the price gained from auction deal, minus necessary costs, shall be granted to the contractor to indemnify their loss. If there are other creditors, even creditors whose loans are guaranteed by the security right set on the construction projects or the use right of the lands on which those projects are built, the contractor has priority over them as a statutory priority claim.根据我国合同法，如果经过承包人催告并给予合理期限，发包人仍未能支付合同价款，承包人有权将建设工程折价受偿，也可以申请人民法院将建设工程拍卖，以其价款扣除合理费用后可以优先受偿。如果存在其他债权人，即使是其债权以建设工程或建设工程的土地使用权设立抵押，仍不能对抗承包人，承包人的受偿权优先于上述债权人，是法定受偿权。Which legal entities are entitled to exercising CPPPC? The payment of construction price also involves the designer, the surveyor, the subcontractor, and the suppliers. The Contract Law does not clearly stipulate the scope of available entities for CPPPC. In legal practice, we would find out that the judiciary supports the contractor of decoration project shall be entitled to CPPPC; however, the designers, surveyors, subcontractors, suppliers or actual constructor illegally borrowing qualification shall be excluded from the scope of entities entitled to CPPPC.哪些法律主体可以行使工程价款优先受偿权？工程价款的支付涉及多个主体，比如设计人、测绘人、分包人、供应商等等。合同法并未明确规定可以行使这一权利的主体范围。在司法实践中，法院支持装修工程的承包人行使工程价款优先受偿权，但设计人、测绘人、分包人、供应商或者违法借用资质的实际施工人都排除在可以行使工程价款优先受偿权的范围之外。The contractor can make CPPPC claim in arbitration or judicial trials. However, it is possible for a contractor to notify the proprietor in written form for payment of construction price, and after a reasonable period of time, if such payment has not been duly made, the contractor then is entitled to suing the proprietor before the court. When a CPPPC claim has been made, the arbitration tribunal or the court may arrange public auction of the project, and the project price minus necessary costs, including auctions fees, will be paid to the contractor in priority to any other creditors. However, the CPPPC only covers the costs borne by the contractor with respect to cost of labor force, materials, devices, etc,. and will not cover the interest loss or the benefits gained from renting the house units.承包人可以在仲裁或者诉讼中提出工程价款优先受偿权，不过，承包人也可以以书面的方式向发包人提前告知工程款支付事项，经过一段合理时间如仍未支付的，承包人可以向人民法院提起诉讼。当承包人提出优先受偿权后，仲裁庭或者法院可以将已经竣工的工程进行公开拍卖，所得价款扣除拍卖费用等必要开支后，优先清偿承包人的工程款。不过，工程价款优先受偿权只包括和劳动力开支、材料和设备开支等建设工程直接相关的费用，并不包括利息损失，也不包括可以从房屋出租中获得的收益。In a case that our professional team handled, the contractor terminated the construction agreement with the proprietor due to conflicts and disputes arising during the implementation of construction. Both parties agreed to terminate the contract, and the proprietor was obliged to entrust competent quota station to authenticate the amount of the construction price related to the built-up part of construction project. However, the proprietor refused to entrust a quota station to authenticate and figure out a reasonable amount and contracted the project to another construction company. The proprietor’s behavior made further authentication of established part due to the work completed by the former contracor and the current contractor were mixed and difficult to be distiguished from each other. The former contractor then filed a lawsuit against the proprietor, and the court ruled the proprietor is subject to CPPPC, making the project to be put on auction.在笔者团队所处理的一起案件中，承包人在施工过程中与业主发生了争议，导致合同终止。双方都同意终止合同，业主方有义务委托特定的定额站对于已经完成的工程价款进行鉴定。然而，业主方却拒不委托定额站鉴定和计算合理工程造价，并将工程发包给了另一家工程公司。业主方的行为导致已经建成的部分不可能得到鉴定，因为前后承包人的工作成果混同而无法区分。前承包人于是向法院起诉业主方，法院也判决业主方有权行使工程价款有限受偿权，将该工程予以拍卖折价。
