The Study On Residence Leasehold

The lease of tenement, a classic means to take advantage of immovable properties, is a component of much importance of real estate in China. It is capable of optimizing allocation of resources, activating housing stock and promoting market circulation, which thus makes it the hotspot of both investment and consumption. Also, the system of tenement leasing is a significant juristic form of utilization of immovable properties as well as an indispensible constituent of law of property all over the world. Countries of civil law system generally make common regulations in law of obligation in the civil law code, and then specific legislation is to be made on the lease of tenement. Comparatively, countries of common law system also have statute law outside the common law. In China where no civil law code has been formulated so far, legislation on the lease of tenement mainly is made within the contract law and relevant judicial interpretation. Due to the historical reasons, legislation on the lease of tenement in China is still relatively out-dated, along with the situation that the academia has not yet probe into some deeper problems such as special protection of leasehold and leasehold of buildings for commercial use. Based on the existing research, this paper is about to tentatively explore some issues on the lease of tenement. Combined with the present tenement leasing legislation in China, the starting point is made from the trend of real right of leasehold, followed which is the in-depth research of issues on tenement leasing. The whole paper is on the basis of both the comparative analysis of foreign studies on leasehold and the research findings in our country. In addition, viewpoints on leasehold in China of this paper are put forward on the condition that social realities and experiences of juridical practice have been summarized.This paper is composed of five chapters as follow:Chapter one is the study of properties of leasehold. The first point taken into consideration is the argumentation of four major controversies in the academia. What follows is the analysis of legislation of leasehold in countries of both civil law and common law system. The thesis, with the present legislation situation in China combined, is made that in our country orientation of leasehold is supposed to be the trend of real right.Chapter two is about to discuss the four major issues occurred in the exertion of leasehold, namely the issue of housing repair, the issue of disposition of leasehold and the issue of rent. These issues cover all the contracts of tenement leasing, constituting the main rights of leasehold. As to the issue of housing repair, this paper holds the view that on the one hand, the legal system has to make compulsory provisions on using conditions of the house for rent, thus avoiding the situation that the leaser, taking advantage of the dominant position, forces lessees to accept houses below the standard environment and that leasers impute compulsory obligations to the lessee. With regard to the adjustment of rent during the lease, this paper claims such actions should be under the regulation that leasers' right to terminate the contract has to be restricted when lessees fail to pay the rental in accordance with the contract. Only when the delay in payment adds to a certain number that exceeds the legal criterion, dose the lessee gravely breach the contract thus can the leaser terminate the contract. In dealing with the claims to adjust the rental, the lessee is supposed to be entrusted the right of claim according to the situation and the condition of disabled usufruct.And as to the issue of sublease and assignment of leasehold, the author holds that the disposition of these two is the way to make profits from the exchange value of the house for rent. Thus, legislation in terms of such disposition should be distinguished--the disposition of leasehold of residences should abide by restrictionism; while, the disposition of leasehold of buildings for commercial use should follow the rule of liberalism, the purpose of which is to achieve a balance between safeguarding the ownership of leasers and facilitating capital circulation.The third chapter focuses on the protection of lessees' interests in the exertion of leasehold. Influenced by the developmental trend of modern civil law that societal factors have been strengthened in the law of contract, this paper claims that under the stimulation of real right of leasehold and theory of civil right of residence, leasehold is endowed with certain extent of antagonism and stability, which is beneficial to the sustaining and secure protection of lessees. Another viewpoint to be illustrated is that though the present social living conditions have been through a profound change, it is still reasonable for the preemption right to exist. Additionally, this paper has pointed out the way out of the dispute occurring in the practice and flaws of legislation of preemption right. As to the issue of confliction between leasehold and hypothec, the author asserts that the point to break through is laid in the real right of leasehold. In the circumstance that leasehold has been established first, legislation should make it clear that the pledger is obliged to inform the pledgee. Conversely, the legislation has to clarify that when the hypothec is realized, if the residual maturity is within six months, the lessee can make a claim to proceed with the contract. This would be a necessary to protect the rights of the pledgee and the lessee when conflicts occur between leasehold and hypothec. The author holds that now that the law has entrusted leasehold the antagonism, this antagonism has to be assessable to the third party. Therefore, what should be done is to perfect the registration system of tenement leasing which explicitly regulates that only registered and occupation-realized leasehold can achieve such antagonism. This measure can not only facilitate the coordination of the conflict, but also balance interests among social groups and stabilize the society.Chapter four is on the focus of remedies when leasehold infringement occurs. In the viewpoint of this paper, the nature of leasehold is creditor's rights. Therefore, ways of protection include the right of obligatory claim in both law of contract and law of torts, the former of which directs at the leaser and the latter of which aims at the third party that put into effect the infringement. And after the realization of real right of leasehold, the possession right is able to serve as a bridge to achieve the protection of leasehold in terms of real right, entrusting the lessee rights of claim to remove interferences. This paper claims that rights of claim to remove interferences belong to the lessee as well as the leaser. When the lessee exerts such rights, s/he is required to go through the pre-procedure of the leaser, thus not violating the ownership of the leaser. However, under the condition that the leaser's whereabouts remain unknown for a long time and there is no other obligee available, the system of adverse possession in the common law system, based on the principle to protect the leaser with good faith, to optimize the usage efficiency of houses and to stabilize the social relationships, can be brought in for the purpose to protect the lessee with good faith in the leaser's absence.The last chapter is about to lay the foci on the construction and perfection of legislation of leasehold in China. In the first place, the author points out the problem existed in the legislation of leasehold in terms of substantial law and procedural law as well as the way out of this dilemma. In the meantime, what has also been asserted in the paper is that the legislation of residence leasing and the lease of buildings for commercial use should be distinguished and the priority to lease should be endowed to lessees who lease buildings for commercial use. In addition, this paper makes a further study of the issue of pledge concerning the leasehold of building for commercial use, asserting that such leasehold is capable of security and pledge.