Study On The Preemptive Right Of Housing Lessee

Tenant preemptive right in civil law as an important system of civil law. It is the results of the freedom of contract law balanced, civil subject autonomy and the disadvantaged group benefit protection of those three relationships .This system not only satisfies society of legal rules demand, and follows the freedom of contract, the autonomy of the two most important law principle, as well as the legal protection to the disadvantaged groups interests. Tenant preemptive right system is a country by law means intervention of economic life really reflect, and also satisfy the importance of using content of use value concept of modern property requirements. Although our country's civil legislation very early has to tenant preemptive right system of the state, but due to the existing laws on the system stipulated not perfect, not only caused a judicial practice of legal application difficulty and chaos, and damage the tenant of preemptive right, then affects the system functions. I also have been no national boundary jurist stop on the system to explore the theory, but for this one system of some basic problem hasn't the consensus. In view of this, the paper will be based on the existing laws and regulations, and combined with the latest theory research, and comparison and the reference of foreign legislation of our country, the current tenant preemptive right system discussed so as to contribute to the system and the consummation .This article have three partsThe first part is for tenant preemptive right system overview, discusses mainly the tenant preemptive right the concept, system value and properties. Our civil law circles for tenant preemptive right system of constitutionality controversial, the author although think opponents reason has certain rationality, but tenant preemptive right system still has its existence value and necessity. This system is the survival of social basis still exist, can bring great economic benefits, but also has "trade does not break leasing" principle cannot replace function. About tenant preemptive right of nature and academic circles are mainly form right said, say, the real right said, claim creditor is saying, view. The author will according to the civil rights classification standards to tenant is preferential properties were discussed. The right to function as a standard, the author approve tenant preemptive right for the right of formation doctrine. Because tenant preemptive right in content, character and function with other form right consistent. But will the qualitative to form right is helpful for protecting the legitimate rights and interests of the tenant conform to the legal establishment tenant preemptive right system of legislation intentions. The validity of the rights for the standard, the author thinks that tenant preemptive right belongs to the creditor. Whether the object standard according to the right, or right of effectiveness and content standards, tenant preemptive right of creditor's rights shall be classified as.The second part is to exercise the pre-emptive right tenant discussion. Due to the establishment of legal act with exercise are two existing contact but different concept, so the author discusses preemptive right exercise before the establishment of the rights made some discussions to prevent people produce the lessee preemptive right of establishment of namely when the lessee may exercise is preferential buy right of error in understanding. The author in favor of the lessee preemptive right leasing contract is established since established when point of view. For tenant preemptive right exercise mainly related to the discussion of the rights of the subject, exercise conditions and exercise period, etc. In addition to the tenant of course right exercise main body, the author thinks that the lessee, the lessee lifetime with times jointly living person can become a right exercise subject. And right exercise conditions are including the lessor and the lessee betraying a lease as "the same conditions" said purchase and does not belong to law exceptions these three conditions. Because of China's laws on the lessee preemptive right exercise conditions prescribed insufficient, the author makes a thorough above three conditions: to the lessor is discussed in detail the "betraying rental housing lease" and "sell" of defined; "The same conditions" the determination standards and content was analyzed, Enumerates some of the legal provisions prescribed by the exceptions. Hope that the above discussion to the lessee preemptive right on our perfect the system of the help.The third part is about building the lessee preemptive right and other rights and relationship of solving problems. Our legislation in provisions tenant pre-emptive right has also provided the mutual person of preferential buy right, this creates a tenant sharing someone in to exercise the pre-emptive right conflict. When both conflict, considering the purpose of legislation, and common property of the interested and reasonable factors, mutual person of preemptive right in tenant shall give priority to the preemptive right. And when the lessee and times the lessee preemptive right conflict, gives priority to the lessee times the lessee to exercise the pre-emptive right practice more accord with preferential buy right legislation goals and fair value idea. Due to the establishment of transfer does not need to mortgage the possession of so will not to the property ownership and use effect, thus building droit where people can have rental houses set hypothec, tenant of preemptive right there is no conflict with mortgage. If homeowners will own rental housing mortgage, when appearing again after the lessor can't fulfill debt needs the rental housing realize the mortgagee's mortgage the option, tenant is may exercise its preemptive right.