On The Pre-emptive Right Of Lessee Of Lodge

Pre-emptive right has already existed in Chinese laws and regulations for a long time, and there are a lot of people renting rooms from others in the real life, the Contract Law published in 1999 made the pre-emptive right of lessee of lodge system be one of its provisions, but the provision is too simple and incomplete to be used well in practice. Supreme People's Court published a Judicial interpretation called"The interpretation to the application of law for the trial of urban housing rental contract disputes"in 2009, which mend and completed some controversial problems of the system to some extent, but there are still some other problems to be settled and some problems that the Judicial interpretation tried to settle are not made clear. Considering some other countries'regulations and the purpose of setting up such system, I will express my opinions about the nature of the pre-emptive right of lessee of lodge, how to found and perform such right, and whether such system has the value to exist. Through my thesis, I hope to know more about the system and make the system more perfect.There are four chapters altogether.Chapter one focus on the nature of the right .There are a lot of opinions about it ,such as the theory of formation right or conditional formation right, the theory of claim right, the theory of property right and so on. The thesis will evaluate such theories by considering the legal theory and the purpose of setting up the system.Chapter two talks about the problems which arise from the course of exercising the pre-emptive right of lessee of lodge. It includes three parts. The first part is about the elements of setting up the pre-emptive right of lessee of lodge, there are many different opinions about it, which result from the inaccurate understanding of the nature and affect exercising and relieving such right properly. In this thesis, we will not only find out which elements constitute the right, but also define every word in each element. The second part is about the elements of exercising the pre-emptive right of lessee of lodge. In this part, we need to make two problems clear, one is"the same conditions", the other is the time limit of exercising the right. It is very difficult to deal with the two problems in practice. We can't make the regulation too rigid, and we can't give the judge too much discretion on considering the"the same condition"either. And about the time limit of exercising the right, there are some mistakes and flaws which need correcting and supplementing. The third part is about the conflict between the pre-emptive right of lessee of lodge and other pre-emptive rights. For example, the pre-emptive right of co-owner, the pre-emptive right of the secondary lessee of lodge. In my opinion, they don't conflict with each other.Chapter three focus on the legal effect of exercising the pre-emptive right of lessee of lodge. Through exercising the right, it will change the relationship not only between the lessee and landlord, but also between the landlord and the third. Considering that the nature of the right is formation right, we introduce the system of Notice Registration on the basis of distinguishing different situations, to make sure that we can settle the problem in the theory and practice. Chapter four discusses the values of the system of pre-emptive right of lessee of lodge. The scholars who are for the system or against it all have full reasons, however, considering the value ,purpose of the system and the present situation of our country, we think we should keep this system in the current time, on the basis of doing some modification to the system.