A Study In The System Of The Preemptive Right Of Lessee In Chinese Law

The legal system of the preemptive right in current Chinese law has been established at the very beginning of the civil legislation of China in the particular historical case and in accordance with the particular policy. Afterwards, this legal system has been simply repeated and emphasized in a way of policy, laws, regulations and judicial interpretation. However, with the development in real estate and with the prosperity in renting industry in our country, the stipulation of this system is too principled and too hard to operate with an oversized rule extension, and a chaotic in its intrinsic logic. As a result, more and more shortcomings, including the social disapproval to this system, become obvious. The legal results of many leasing cases on the preemptive right to purchase could not protect the lessee's benefit, but it also harmed the benefit of the lesser and the third person. It also has brought harm to the trial authority. Moreover, this system has been questioned both in theory and in practice. So the consummation to this system is in an urgent condition.This thesis is based on the historical development of Chinese legal system of the preemptive right, compared with the preemptive right of the lessee in the foreign legal systems. It puts forwards that the preemptive right of the lessee should be determined as a right of formation; then on the basis of a analysis on the value foundation of this system and the concrete question and shortcomings in the trial practice, this thesis continues to discuss under the present legal rule premise, what are correct understandings to the conditions of the formation and exercise for the preemptive right of the lessee, and it further proposes its legislation suggestions to this system. It is advocated that a limit of the applicable scope should be put on this system; the conditions and legal consequences should be explicitly defined on the preemptive right of the lessee. It also advocates the system of the implementation agreement on the preemptive right of the lessee, and it also advises the corresponding legal measures should be established to safeguard its exercise; and lessons from the foreign systems of the preemptive right of the lessee should be learnt to complete the civil system in China on this item.