On Lessee's Right Of Preemption

With China's rapid economic development, the real estate industry is booming, and the house price is rising rapidly. However, the actual purchase capability of the ordinary people can not increase correspondingly, and many people can not afford housing, resulting in the continuous development of leasing industry. Then the right of preemption of lessee is gradually noticed. As an important civil institution, the right of preemption of lessee has always been formulated by law. There are relevant regulations in"Contract Law","Interpretation of the Supreme People's Court on Some Issues Concerning the Application of Law in the Trial of Cases about Disputes over Lease Contracts on Urban Buildings", etc. However, because the regulations of this institution are not sufficient and are lacking of operability, there have been a lot of problems in practice, resulting in judge discretion to different degrees. It not only harms the justice and the legitimate rights of the parties, but also undermines the right of preemption of lessee itself. The author from the theoretical and practical aspects makes a more comprehensive discussion, in order to improve the system of the right of preemption of lessee and to propose several legislated suggestions in the following five parts.In the first part it describes the basic theory of the Lessee preemption system. The concept of pre-emptive rights for lessee is defined and its various features are analyzed.In the second part it explores the nature of the right of preemption of lessee. It is a premise condition to make the nature of this system clear. The right of preemption of lessee is jus acquistitum, and at the same time a conditionally formative right in aspect of the right functions. It is up to lessee's own willing to make the contract between lessee and lessor, which content is conditional on the sale contract between the lessor and the third party. In the view of the effectiveness, the lessee's right is with the nature of the property right, so the contract made by lesser has the priority effect.In the third part conditions for the lessee to exercise right of preemption are analyzed from the aspects of "same conditions", "lessor's obligation to notify the lessee, ""certain period of time" and "the right subject ", etc.In the fourth part, respectively in the views of the lessor, lessee and the third person, through the consideration of the three rights, study how to balance parties' interests and protect their legitimate interests.In the fifth part, it demonstrates the significance of the existence of the right. Firstly the paper gathers the views insisting on abandoning the right of preemption and then criticizes them, showing that in a modern society the right of preemption still has two values of order and efficiency. Besides, the function of right in protecting the vulnerable is gradually replaced by commercial promotion.