Comment On The Lessee's Pre-emptive Right

New introduction of the "rental contract interpretation" make a number of new provisions, the lessee's pre-emptive right on the legislation in the legal logic more scientific, but also a better balance between the interests of the parties, but still not perfect, there are still many problems to stay constantly improve future legislation. This article will research the concept, nature of the exercise conditions, conflicts and solutions mechanism of the lessee's pre-emptive right, and providing some legislative proposals to benefit the judicial practice.On the whole, this article is divided into five parts:Part one, "Overview of lessee's pre-emptive right " in this part,the author will introduces the concept, features, And for the abolition of the lessee's pre-emptive right, Analysis the value of the system. Therefore, come to the conclusion that the system of lessee's pre-emptive right should be retained and for its defects in the legislation should be improved; introduced the domestic and foreign legal requirements on the system to learn a foreign system, improve our system.Part two, "the nature and effectiveness of lessee's pre-emptive right, mainly analysis the subject,exercise time and conditions. The nature of lessee's pre-emptive right on different standards can be divided into theory of Property Rights and theory of claims, the ask right and the right of formation of the two disputes, the author think the nature of lessee's pre-emptive right is creditor's right.the effectiveness of lessee's pre-emptive right is divided into internal validity and external validity, internal validity is mainly bound seller and lessee,the external force mainly refers to whether the lessee's pre-emptive right against the third person effect. Under the new judicial interpretation of the provisions, the lessee's pre-emptive right 1 no effect against third person, so that a better balance between the provisions of the seller, the lessee and the third party's interests.Part three, "the apply of lessee's pre-emptive right" refer to the time of lessee's pre-emptive right, under the "rental contract interpretation" of article 24,the time is 15 days, from the time seller and the third party come to a contract of sale,; tenant right of first refusal on the main body of the exercise of power, I think that the law expressly provided in addition to the lessee should also include sub-lessee, the lessee's heirs, the overall local housing tenants; the conditions to the lessee to exercise lessee pre-emptive right based on a valid lease relationship exists, "the seller sells the leased property," the legal fact, the same conditions, a certain period of time to exercise the right, in which the "equal terms" and "betrayal" has made a more detailed explanation.Part four, "conflict resolution mechanisms of lessee's pre-emptive right," the main tenant in the exercise of right of first refusal exists, and sub-lessee, owner, the auction rules conflict. When a tenant-owner's right of first refusal and conflict, we should uphold the right of owners to purchase priority over the lessee to purchase the right; the lessee to purchase the right to purchase rights and sub-tenant conflict, sub-lessee to purchase the right to priority purchase rights for the lessee; lessee's pre-emptive right in the auction is more complex implementations, I think we can take this program:the lessee in the auction purchaser to participate as an ordinary auction, the highest price when he was shot have housing, in the performance of the contract can pay back the principal in the second high price.; bid only if the seller does not reach the highest price just reach the second high price, by the seller and the second highest price of high price difference between the lessee compensate; when the tenant's offer did not reach the second high prices at this time does not need to be compensated.Part five," the improvement of lessee's pre-emptive right ", mainly from the improvement measures put forward the following three aspects:the main body of the scope of lessee's pre-emptive right, the restrictions of the lessee's pre-emptive right, the e principle of the conflict resolution mechanisms of lessee's pre-emptive right.