| With the continuous increase of urban mobile population and constant changing of people's mind,renting housing has become one of the ways for residents to solve the housing problem.Housing rental market is an important part of China's housing supply system,and plays a very important role in economic and social development.Under the macro policy background of renting and purchasing the same right,it is an important part of deepening the reform of housing system to encourage both housing purchase and housing rental,cultivate and develop the housing rental market,so the protection of housing lessees must be strengthened.The functions of all kinds of houses are different,and the social value and mission of different housing rental are not the same.As housing rental has a special social security function,different legal rules should apply to housing rental,commercial housing rental and public housing rental.For the leasing of commercial housing,which is the behavior of the market-oriented subject,there is not much gap in the status of the parties to the contract.So the will of the parties and the principle of freedom of contract should be fully respected,and there is no necessary for the law to intervene compulsorily.The public housing rental is to protect the low-or middle-income people in the society.It is the natural obligation of the state or the government to protect the social vulnerable groups.It is not the legal relationship between equal parties,so in this case the administrative intervention of the state is the strongest,and the management and administration of the public housing rental is the strongest.Housing rental is related to the survival and development interests of the lessee,so it is necessary for the state to intervene in the regulation of the principle of absolute ownership and freedom of contract to a certain extent,in order to protect the interests of the lessee.Traditional civil law adheres to the principles of absolute ownership and freedom of contract,which cannot achieve the purpose of protecting the housing lessee in a weak position,so it is necessary to legislate to intervene in the legal relationship of housing rental and correct the formal justice of freedom of contract in order to achieve substantive justice.It is an important policy goal of the housing rental law of all countries to protect the legal interests of the lessee,and to achieve the substantive equality between the lessor and the lessee in the housing rental relationship.The legal system of housing rental in countries breaks through the principle of relativity of contract in traditional civil law,constructs the legal system of housing rental to protect lessee on the basis of lease contract and with the right of housing lease as the core,and by increasing the obligation of housing lessor,restricting the lessor's rights to expand the housing lessee's rights,strengthen the real right effect of the leasehold(the housing leasee right),enhance the lessee's status,and strengthen the inclined protection of the housing lessee's rights.First of all,this paper makes a theoretical demonstration of the reasons for the special protection of the rights of housing lessees.Because the lessee is in a weak position in the housing rental relationship,it is necessary for the law to correct the formal equality,inclined to protect the vulnerable housing lessee,and to achieve substantive equality.Housing is related to the basic survival interests of the lessee and his family.Compared with the interests,the lessee's interests(living interests)are important than the lessor's interests(the investment interests of collecting rent)and are more likely to be protected by law.In human rights law,the right to adequate housing is recognized by international conventions as a fundamental human right,raising the lessee's rental right of housing rental to the level of human rights protection.The right to adequate housing enjoyed by the lessee includes the right of housing security,the right of human dignity,the right of housing tranquillity,the right to prohibition of eviction,etc.Ensuring the right of the lessee having security,freedom,peace and dignity during the rental of the house is an important part and mission of the right to adequate housing.In legal theory,housing tenant right derives from the combination of the housing lease contract and occupation,and shows the nature of the right through the status of possession.The law gives the protection of the real right claim to the fact of possession,and protects the lessee's tenancy right by the way of possession protection.The protection of the right to possession by law is in fact the protection of the actual rights behind it.In terms of social theory,the theory of social responsibility of ownership at the beginning of the 20 th century emphasizes that the exercise of individual ownership should be accompanied by social responsibility for the public interest of the country and even for the promotion of the common needs and well-being of mankind.The social obligation of housing ownership is to provide social security function of housing,attach corresponding social obligations to housing owners,and restrict the freedom of house owners to exercise their rights.The strengthening of the rights of the lessee is the restraint imposed on the ownership of the house.The legal system of housing rental shall aim at protecting the special rights of the lessee,stabilizing the housing rental relationship and social order,implement main institutional concepts such as the real right tendency of tenant right,the long-term lease contract,the stabilization of the rent standard,the ownership of the lessee's rights,explicitness of the characterization of the rightsand so on,embodied in the special institutional composition.This paper discusses the basic rights and obligations of lessees and lessors based on housing rental contracts,as well as the special subsidiary obligations based on good faith.In the aspect of the state's supervision of the housing rental market and the balance of the interests of the parties,the minimum habitable safety standard of housing rental should be established to ensure that the lessee lives safely,healthily and with dignity in the rented house.It is necessary to construct the rent adjustment system of housing rental,stabilize the housing rental relationship,balance the interests of both parties,strengthen the regulation of the deposit of housing rental,especially establish the separate management system of the deposit of professional leasing institutions.In the aspect of restricting the exercise of the rights of the housing lessor,we should construct a special protection system for the lessee in the termination of the housing lease contract,protect the lessee's interests of existence of rental with the rules of just reason,and provide the housing lessor with the obligation of derogation to give full play to the social benefits of making the best use of things;limit the lessor's private relief of taking house back,achieve social peace and stability,so as to achieve the purpose of full protection of the interests of housing lessees.For the considerations of policy to protect the living right of housing lessees,the legislation of various countries strengthens the priority protection of the housing lessees' residency rights.This kind of residency right,which is specially protected by law,belongs exclusively to the lessee and is refined by scholars to form the concept of tenancy right.The housing tenancy right(housing leasehold)is the lessee's right of residence in the leased housing.It is the right owned by the lessee during the occupation of the leased house on the basis of the housing lease contract after the delivery of the leased house.It is the right to live safely,healthily and dignifiedly in leased house,and is the right of the lessee to use and benefit from the leased house against new owner and other third parties.The substantive characteristic of the lease right is the effect of the real right.The housing leasehold has the effect of ensuring the existence of the lease relationship and against others' obstruction and hindrance to the lessee's stable residence and life.On the basis of analyzing the nature and effect of the housing lease right,this paper puts forward that the housing lease law of our country should adopt the theory of the real right tendency of the house lease right to construct the system of protecting the house lessee.Under the principle of the protection of private property and freedom of contract,modern civil law pays more attention to the protection of the weak in society and pursues social fairness,justice and substantive equality.Driven by the housing socialization movement,legislators gradually recognized the special interests of housing lessees in rental housing.The legislation of various countries strengthens the protection of the housing lessees who are in a weak position,restricts the exercise of the rights of the owner,and increases the social obligations of the owner,resulting in the trend and characteristics of the real right of housing lease.It is the legislative trend of all countries to protect the effect of housing leasehold as real right.Most of countries have laws such as housing sale not breaking leasing,the lessee's preemptive right,the lessee's priority right to renew lease contract,and the restriction of the system of justifiable reasons on the lessor's right to terminate the contract that restrict the autonomy of the will by law.The leasing legal relationship is not affected by the change of the owner of the leased housing,and the prior lease right can be against the new buyer of the housing.When there is a conflict with the rights of the third party,the lessee of the housing has the right of priority protection.Such an institutional arrangement makes the tenancy right have a strong stability,and the purpose of the housing rental contract has been sustainably and safely guaranteed.The legal system of housing rental is a system constructed with the right of housing lease as the core.After the establishment of the housing lease right,its effect is mainly reflected that the existence of the legal relationship of the housing lease is not affected by the change of the housing owner,and the housing lessee can enjoy the property claim right of possession protection based on the legal possession.Based on the effectiveness of the lease right,the sub-lessee and the co-resident after the death of lessee also enjoy special protection based on the lease right,keeping the stability of the lease relationship.This paper holds that the preemptive right system of the lessee has independent institutional function and social value,but the preemptive right system of our country should be improved.Based on the security and order of the transaction,and the protection of the interests of the house buyer should not be ignored.Therefore,the lessee's preemptive right is not applicable in rental housing after public auction.The priority to renew lease contract has no independent institutional value and function,for the reason that the housing lease contract belongs to the relationship of continuing debt,and the existence of the lease contract pays special attention to the trust relationship and personal credit of the parties.Whether the housing lease contract will renew after the expiration of the housing lease contract depends on the trust relationship between the lessee and the lessor,if the trust relationship between the two parties is broke up in the performance of the contract,it is obviously unfair to the lessor to let the lessee claim the legal priority lease right after the expiration of the contract.Therefore,the law attaches importance to the maintenance of the trust basis between the parties in the housing lease contract and whether to renew the lease is in principle up to the parties to choose on the basis of the relationship of trust.When realizing the mortgage of the lessor's housing,there is a conflict with the interests of the lessee,and countries have created many systems to protect the interests of the lessee,including the lessee's right to know,the deferred delivery system,the mortgagee's consent system,etc.The legislation of our country should construct the special protection system for the lessee of the house in the process of realizing the mortgage.In the process of buying and selling leased housing,the lessee's status shall not be affected by the change of ownership,and the transferee may inherit the status of the original lessor.The rules of housing sale not breaking the lease,which are mandatory provisions for the special protection of the lessee of housing,should not allow parties to give up in advance,otherwise the system has no value,and the protection of the lessee will become formalistic.This paper combs through the current legal provisions of our country,puts forward the idea of perfecting the core system of housing rental in our country,and discusses the tenant right protection after judicial disposal(forced auction)and the elimination of the interference of the lease right.This paper also discusses about improving the housing rental registration system,strengthening the publicity effect of housing lease right,protecting the real housing lessee,preventing the debtor(housing owner)from conspiring with the off-case lessee to hinder the enforcement with false lease contract.Finally,based on the analysis of the lessee's rights under the modern city living mode,this paper holds that there has been a fundamental change in our country to distinguish housing form from the traditional single family by buildings.The lessee can not only use the exclusive part of the owner's housing,but can also use the common parts and public facilities and equipment within the scope of the residential property.The common interests of the residents of the residential area must be protected and form the legal relationship between the owners(lessors and other owners of the community),property service providers,owners' committees and so on.Based on the implied alienation of the owner's rights,the lessee should be given quasi-owner's right,including the right to use public resources and facilities and equipment,the right to accept realty management services,the right to participate in the management of public affairs and the right to stop nuisance.Therefore,it can strengthen the protection of housing lessee,and maintain the common interests and order of all residents within the neighborhood,in order to build a system with full protection of housing lessee's right.The law can keep a balance between the interests of the parties.When the system of housing lease law strengthens the protection of the interests of the lessee,should take into account the protection of the interests of the lessor,balance the interests of the parties.The legislative process of countries reflects a process of gradually expanding the scope of rights and strengthening the effectiveness(protection methods)of housing lease rights.Even if the per capita housing ratio in these countries has been over 1.0,the protection of housing tenants continues to strengthen.The housing leasing law of our country should follow the legislative tendency of modern housing leasing,constructing the relevant rules of the legal relationship of housing leasing on the basis of the lease contract,and constructing the legal system of housing leasing with the tenancy right as the core,especially protecting the interests of the lessee to promote the healthy development of the housing rental market. |
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