Several Issues Of Tenant Preemptive Right

Tenant preemptive right is a priority, belong to the creditor's rights, it is the rights with which the lessee enjoys the prior to others to buy leased house under the same conditions, when the renter betray the house. The purpose of tenant preemptive right system is to weigh the interests of the renter, the lessee and the third parties.Along with the development of the real estate market in China, the application of tenant preemptive right system is increasingly frequent, defects of the system are exposed increasingly obviously, dispute of the system also become increasingly fierce.Long-term since, our country laws regarding to the tenant preemptive right is article 118 of" the opinion(trial) about carrying out some issues of< civil law of the People's Republic of China> " released by the supreme people's court and article 230 of the PRC contract law. But the two regulations are too simple, lead to some dispute in the judicial trials:the demarcation of "equal conditions", how to recognize the right range under "partly lease but whole sale" circumstances, how to determine the given time limit of the lessee and the renter, what kind of legal remedies can obtain when the lessee preemptive right is infringed, etc.The author believes that, whether the law is effective or not depends on its practicability, truly valuable law should come from practice and go to practice. This paper, combining the judicial precedent with the research results of scholars, discusses above questions which appear frequently in judicial practice, from the angle of practicability.About "equal conditions", the author considers it as "dominant and recessive conditions are same". Dominant condition refers to the price, quantity, payment, pay time limit, dispute resolution and other main matters of contracts; Recessive condition refers to the factors which not appeared in contract but play important role, such as special relationship between the parties like relationship, friendship, kindness and so on. About how to recognize the right range under "partly lease but whole sale" circumstances, the author thinks it must be considered whether the house is divisible with the proportion the leasing part accounted for betraying part comprehensively. About how to determine the given time limit of the lessee and the renter, the author thinks it can be confirmed refer to the certain one according to the equivalence principle, no matter which one is not sure. About what kind of legal remedies can obtain when the lessee preemptive right is infringed, the author thinks that it is most reasonable for the lessee to get compensation claim, as for request scope, it should include:the expenses of decoration (when there is no term about the expenses of decoration in lease contract, if there is, according to the agreement); The necessary expenses for the lessee to find another house (refers to the necessary expenses for transportation, communications, charges, connection, etc);The price difference for the lessee to purchase similar houses(refer to similar address, similar quality and similar use);If the lease is shops, the lessee can also get closure loss (refers to the interests the lessee can get from business when he can still use the lease, now the renter should pay the lessee the profit from stopping lease to finding similar shop and continuing the business). About responsibility of the third party, the author argues that when the third person is unsuspecting, he is no responsibility, the renter should be responsible for infringement; when the third person is suspecting, he and the renter should be responsible for infringement.