Study On The Nature Of Leasehold As Profit Real Right

It seems as if it could be replied without the thorough analysis that whether the leasehold is the real right or the creditor's right. The viewpoint of mainstream civil law believes that the leasehold is based on the contract of lease, therefore it certainly belongs to the creditor's right. However in recent years, the viewpoint that the leasehold belongs to the real right (in essence profit real right) is to receive more and more attention. It has also been verified by regarding the attention of the right of housing .The leasehold base on the creditor's right, actually has the potency of real right. The viewpoint of leasehold similar to the real right has difficult problem oneself unable to overcome. But we can obtain a better protection if we put leasehold into real right. This needs to clear off many theoretically questions with the profit real right. The main one is to improve the profit real right system of our country at present. On March 16, 2007, the Reality Law of People's Republic of China (Draft) successfully passed. The stipulation of the profit real right system compared with the former has very big progress but still have improvement space. The article has carried this also on the discussion.The article has altogether five parts, specifically includes:The first part is the theory for the nature of leasehold. Study on the theory of that leasehold belongs to profit real right start with the rule that business does not break lease. Mainly introduce the concept, the using of the rule of business not break lease as well as the correlation partial stipulations of the contract law of our country. The stipulation of the sign thing of the rule of business does not break lease is mostly the real estate, but also has the movable property legal regulation. Our country law does not have the explicit limits regarding this, and has had very great difference. Through the analysis to various countries legal rule as well as legal rule of our country at present, the article believes in our country the sign of the rule that business does not break lease not only include the house, but also the movable property. This can manifest the original establishment intention of the rule that business does not break lease. The theory for the nature of the rule that business does not break lease mainly includes that lease similar to the real right and lease is profit real right. Lease similar to real right believes lease is the creditor's right in essence, and have the real right characteristic based on the theory that lease similar to real right, specifically divided into the holding theory of Taiwan area and the protection theory of land area. The viewpoint of lease similar to the real right has difficult problem oneself unable to overcome, mainly in the difference of real right and the creditor's right. The article points out the difference between the real right and the creditor's right, Thoroughly discuss why the real right and the creditor's right is appearing fuzzy in the boundary, explain that as scholarly research, we cannot explain the rule of business does not break lease into the theory that credit right similar to real right because that present legal rule lag on, and in essence its a kind of academic on inertia. Simultaneously the article points out that, it is realistic and feasible if the lease belongs to the profit real right.The second part mainly elaborates the right of lease in essence. The leasehold in essence is to hold, use, and harvest and assign the lease. and holds right is a kind of real right which Non- owner use the other people's property, Non- owner hold the other people property by holding, using, harvesting and assigning in order to have direct control rights. Therefore we can say from the root that leasehold in essence is holds. From content, the leasehold has the real right basic attribute; from producing, leasehold has general character with the profit real right; from the angle that the difference between the reason and the result for changing, their establishment become effective rest on different principle of legality. The leasehold base on the contract, but this certainly was not equal to that leasehold is creditor's right. It is the result that we jumble the reason of the rights with the nature of it together. If we put the leasehold to the category of debt, it will be very different with the debt characteristic. So the leasehold should belong to profit real right.The third part mainly narrates the leasehold nature in other performance. Specifically includes: tenant's first purchase power, when the lesser sale the sign, under the same condition, the tenant has the priority. During the renting period ,if being established other real rights, it actually does not affect the potency of the contract; In renting period, tenant's main right is to hold, use and harvest, therefore, in the period of the contract, the lesser does not have to be supposed to rent the thing to the third person. During the period, the tenant has the right to hold, use, harvest and any other person can not encroach, otherwise, the tenant can violation the right by requesting the People's Court. Through the elaboration from each angle the article verifies the accuracy that leasehold is profit real right.The forth part mainly analyzes our country present law, put the leasehold into the profit real right from the legislation technology. Mainly is that our country at present is imperfect with the profit real right system, the sign thing is merely restricted in the land and does not include the house and movable property. If the leasehold object is include the real estate and the movable property, then we can put the right into the profit real right, it must expansion the system of the profit real right, including the movable property and the house real estate. Simultaneously the leasehold also has the conflict with the right of housing, the article believes that we should not set up the right of housing in the profit real right system. Then the article thoroughly discusses this question. In addition, the leasehold also has the show question as the real right. In view of the complexity of the fact, the article has first clear that our country contract law stipulation has flaw, then points out the feasible way, such as payment, registration or specially informs. In view of the fact that each way has the flaw, the article believes that we may continue to use registration which our country at present stipulate and carry on the further consummation.