Discourse Upon The Preemption Of The Lessee

China's laws have prescribed that the lessee can enjoy the preemption with the same conditions when the lessor wants to transfer rental housing. However, some drawbacks still often take place in judicial practice because of the vagueness of legal regulations and the lack of operability. Facing with numerous problems, the author of this article studied on the lessee's preemption right.In the first part, the author firstly discussed the concept of the preemption briefly, and analyzed the value of establishing this system.Then the author drafted out the f the lessee's preemtion, as well as analyzing its concept,nature,time effectiveness and compositional elements,and viewed the nature of the lessee's preemption as a formative right.The second part respectively elaborated on the transformation of the lessee's preemption in the history of Chinese and French civil law,as well as the comparative analysis of both the similarities and differences.In the third part, the author of this article discoursed upon a variety of problems in the process of the enforcement of the lessee's preemption in the term of judicial practice. These problems include the difficult identification of"the same conditions"and"certain period', serious divarication of the courts in judicial practice, indeterminate stipulation by law itself and the parties'various practices of evasion and imposition of preemption. Then the author expounded the insurmountable obstacle that exsisted in the realization of the preemption.In the fourth part, the author raised doubts about the preemption from the perspective of legal theory.On the one hand, the current leasing activities aren't just like before from the eyes of the establishment of the foundation in reality of the system, as leasing isn't just for housing, but also for production requirements probably,and the weak position of the lessee isn't so obvious yet comparing with the lessor, what's more, the lessor may buy satisfactory housing as the property market becomes more active; On the other hand , the housing sale contract signed between the lessor and the third party does not meet the extent to be recognized as invalid agreement from the perspective of the theoretical foundation of the system, and nullifying the contract null may run counter to the jurisprudence of the void contract,therefore this system violates the principle of freedom of contract as well as contradicts the third goodwill phase system.Eventually, the author made a conclusion: the preemption of the lessee should be repealed in the legislation,since the theory deficiencies and the drawbacks in practice of the lessee's preemption can't be fundamentally solved,and the lessee's rights have been able to be fully protected through"the system of the leasing not broken by sale".