On The Principle Of Sales Not Devastating Lease

From the angle of rethinking, the author does a comparative research on the principle of sales not devastating lease, including historical outlines, formative constitutions, nature, application scope and systematic value. The author suggests to amend relative legal articles, such as No.229 of contract law, and to add lease registration to future registration law.This paper is divided into four chapters. Chapter one is about general situation of sales not devastating lease. The so-called principle of sales not devastating lease means that a leaser can affirm his right to lease to anyone who has property right of the lease subject while the lease contract is being performed, namely the adverse claim. This principle has broken away from the principle of relativity in aes suun, basic principle of law of obligations. It is kind of obligatory right, which can exclude the third party.Chapter two is about comparative analysis of legislation of sales not devastating lease. From sales not devastating lease, to property transaction not devastating lease, then to property rights not devastating lease, the scope of adverse claim of right of lease has been expanded gradually. Besides, although legislations above differ in degree, they all have measures of publicity for aes suun, in order to gain balance between leaser and one who has jus in rem.On the basis of comparative studying, chapter three attempts to sum up andreview system structure and academic discussion of sales not devastating lease. Demand for an objective and rogatory measure has already grown with day passing. In order to ensure right to lease, it is better to have lease registered. Formative constitutions of sales not devastating lease should included valid lease, property right endowed validly, and lease registration existed before property right endowed. Under the principle of sales not devastating lease, negotiation and agreement between lesser (owner), lessee, and the one who has or will get property right are no longer needed. Lesser should only notice lessee that the lease has been transferred. This kind of arrangement is out of mandatory regulation of law. The nature of sales not devastating lease is more reasonable tb\be regarded as mandatory adverse claim of right to lease. Comparing with the social state while the civil law enacted during the period of the Republic of China, and out of the consideration with economic benefits and law fair, the value of sales not devastating lease lies in protection of weak lessee, of reasonable person, and of safety and efficiency in transaction. And the most importance is attached to safety and efficiency in trade.In addition, as one of administration means of the society, the law should develop with the development of society (economy). The scope of application should be property right not devastating lease, and compelling enforcement of civil law not devastating lease. The lease mentioned above not only include lease of real estate or movable property, but also lease of right.Referring to research already done, chapter four reviews present legislation of sales not devastating lease in China. It makes a criticism of the improper, such as ambiguity of lease transaction, lack of protection of good-will person, and narrative scope. It puts forward concrete modification suggestions that lease should be transferred to new owner while lease subject transferred, that registration should be added as constitution of adverse claim, and that application scope should be expanded of to increase, in the hope of reducing cases and attaining order.