Research On Pre-emptive Right Of Tenant

This thesis mainly discusses the system of pre-emptive right of tenant. The system of pre-emptive right is the civil law system. It plays a significant role in stabling economic order, improving the efficiency of the transaction and promoting social equity. Pre-emption is that according to the law the particular civil entity has the priority to buy the object than others in the same condition, when the seller sells his object. Pre-emptive right of tenant is a right of pre-emption. The system that refers to pre-emptive right of tenant is generally established in each country or region in the world. It derived from Roman Law and inherited by German Civil Code and French Civil Code. It has been improved and developed. The present laws, regulations and judicial interpretations in our country also have relevant provisions about pre-emptive right of tenant, but too simple and its operability is not strong. This article bases on the understanding of the survey of the system of pre-emptive right and the relevant provisions of present laws and judicial interpretations. The author will analyze the controversy and inadequacies and propose my personal ideas and suggestions in the article, with a view to contribute to the further improvement of the system of pre-emption and protect the owner's legitimate interests of rights more effectively.This paper is divided into four parts, including overview of pre-emptive right of tenant, values of pre-emptive right of tenant, legal effect and application of pre-emptive right of tenant, conflicts between pre-emptive right of tenant and other rights.The first part is about overview of pre-emptive right of tenant. This chapter is an overview of the basic theory of pre-emptive right of tenant. At first, the author introduces the definition and nature of pre-emptive right of tenant. Pre-emptive right of tenant is a pre-emption, a statutory right, an expectative right, a right of formation. Secondly, the author introduces legislations of pre-emptive right of tenant. Thirdly, the author introduces requirements of pre-emptive right of tenant. First, there must be a valid lease contract between the lessor and lessee. Second, the lessor determines to sell the object. Third, the lessee tells the lessor he will buy the object in the same condition. Fourth, the lessee must use his pre-emptive right of tenant within a certain period of time.The second part is about values of pre-emptive right of tenant. First, the author introduces views from supporters and opponents of pre-emptive right of tenant. Then, the author analyzes the necessity of pre-emptive right of tenant. However, the pre-emptive right of tenant in China arised in the specific historical environment, the shortage of houses in China has not been changed radically. Now is not the right time to abolish the pre-emptive right of tenant.The third part is about the legal effect and application of pre-emptive right of tenant. Pre-emptive right of tenant is a right of formation which determines the pre-emptive right of tenant has the internal and external effects. Internal effect of pre-emptive right of tenant is that pre-emptive right of tenant can be formed only according to the lessee's will, not need the lessor's agreement ,when the lessee use his pre-emptive right of tenant in the same condition. The external effect is that whether the pre-emptive right of tenant can limit the other buyer. China's laws and regulations only refer to the external effect of pre-emptive right of tenant, not refer to the internal effect of pre-emptive right of tenant. I think the internal effect of pre-emptive right of tenant should be stipulated in our laws and regulations. When the lessee prosecutes for his pre-emptive right of tenant, the judge can confirm the bargain contract between the lessor and the third person is invalid, meanwhile, confirming the bargain contract between the lessor and lessee is valid. Only by doing this, pre-emptive right of tenant can really be effective.Pre-emptive right of tenant should be restricted appropriately, it should not be applicable in all circumstances without any restriction. At first, the author analyzes the scope of its application. First, the lessee must use the object at actual, the lessee who leaves the object unused should not have pre-emptive right of tenant. Second, the nature of the house which as the object of pre-emptive right of tenant should be restricted to residential use, non-resident (including business) lessee does not have this right. Third, the lease between the lessee and the lessor should exist for a reasonable period. Then, the author cites several cases and analyzes whether the lessee has pre-emptive right of tenant in these cases. In the case of auctions, the lessee does not enjoy the right of pre-emption. The lessee also does not enjoy the right of pre-emption after he rent the house to others, but the second lessee has the pre-emptive right of tenant.The fourth part is about conflicts between pre-emptive right of tenant and other rights. In this chapter, the author first cites a specific case which leading to three issues, then, the author will analyze these issues in detail. If pre-emptive right of tenant conflicts with the lessor's lease, pre-emptive right of tenant should be first. If pre-emptive right of tenant conflicts with the pre-emption of joint owner, pre-emption of joint owner should be first. If pre-emptive right of tenant conflicts with the buyer's right of consuming, first we should recognize whether the buyer's intention is good, if the buyer's intention is good, the buyer's right of consuming should be first, if the buyer's intention is not good, pre-emptive right of tenant should be first.