Research On The Unauthorized Sublease System

Unauthorized sublease is the Civil Juristic Acts that the sublessee sublease the lease item to a third person without the consent of the lessor. For unauthorized sublease, only Contract Law made the general provisions of the article 224. But its provisions are too simple, and not define the legal relation between the lessor and lessee. It causes a certain degree of difficulty and confusion in the trial practice. Moreover, unauthorized sublease involves the problems of unauthorized disposition and unjust enrichment which are the hot and difficult problems in the field of civil law tradition. This article is divided into six parts to study the problem.The first part describes the legal definition of unauthorized sublease. The author believes that unauthorized sublease to become"illegal subletting"is not appropriate. The article introduces three legislative mode of unauthorized sublease:mode of liberalism legislation, mode of limit socialism legislation, mode of different socialism legislation. Then analyzed the composition of unauthorized sublease, point out the three elements of unauthorized sublease: the valid lease contract between the lessee and the lessor, the lessee sublease the lease item to a third person, sublease without consent by the lessor. Unauthorized sublease belongs to Verpflichtungsgesch?fte. But it is different from general creditor's right, especailly leases assignment and leasehold assignment. This phase cites Verpflichtungsgesch?fte and Verfugungsgeschaft of Germany Civil Law.The second part describes the legal nature of the unauthorized sublease. Pointed out that unauthorized sublease is a separate act of contract. According to the theory of Germany civil law, unauthorized sublease doesn't belong to unauthorized disposition because it is Verpflichtungsgesch?fte. The writer analysis the meaning of the"disposition", and point out it includes the most general disposition, the general disposition and the narrow disposition. Then discusses the legal system in our Country, unauthorized sublease has often been considered as unauthorized disposition because we don't differentiate between Verpflichtungsgesch?fte and Verfugungsgeschaft. According to the theory of Mr. Cui jianyuan, reasoned why unauthorized sublease belongs to unauthorized disposition from the explaination of system.The third part describes the effect of unauthorized sublease contract. According to Contract Law, unauthorized sublease should be a pending-validity contract. Firstly, unauthorized sublease belongs to the scope of unauthorized disposition contract because the current Civil Law does not recognize the behavior theory of the real right. Secondly, unauthorized sublease contract violates of the binding norm, that is the article 51 of Contract Law, so it is valid only after atifying by the lessor. But unauthorized sublease contract should be valid, it will violate the essence of the contract, the principle of relativity of contracts, the principle of freedom of contract and is not conducive to the protection of transaction security. The essence of contract lies in forming the relationship of debtor-creditor relationship between the parties. It don't concern whether creditor's rights and debt can really be fulfilled or not, but to give legal binding force of this relationship, so that can guarantee the rights of the parties to be protected by law. The general nature of freedom of contract is not mandatory restrictions. Freedom of contract is a contractual relationship and the corresponding rights and obligations established in the form of the only element. Contractual rights and obligations of freedom of contract can only be the product of their own. Constraints can only come from self-restraint, rather than a product of external law. China's Contract Law does not stipulate the term of recognization, so that the Contract relationship between lessor and lessee will be overthrowed. So, despite Contract Law emphasises on the protection of ownership, but not in favor of the transaction security.The fourth part describes the effect of unauthorized sublease contract that the lessor refuse to recognize or exercise the right of rescission. The original leasehold relation still exists between the lessor and the lessee although the lessor doesn't exercise the right of recission. Because of the lessor's damage caused by unauthorized sublease of the lessee, the lessor chould claim for compensation form the lessee. The legal relation between the lessor and lessee don't occur any changes. If the lessor exercise the right of recission, the lessor can claim for the responsibility of breach of contract or the lessor may terminate the original leasing contract. If it causes damage, the lessee shall pay for it. Because the lessor refuse to recognize unauthorized sublease contract, so the lessee can claim for damages. In a word, regardless of whether the lessor exercise the right of recission or not, there is a certain relationship between the rights and obligations among the lessor, the lessee and sub-lessees. After the lessor exercise the right of recission, the sub-lessees can claim for the responsibility of breach of contract, or for damages, or the requestion of the return of belongings, or a combination of both.The fifth part describes that unauthorized sublease contract whether can causes unjust enrichment or not. Although the problem of unauthorized sublease contract whether can causes unjust enrichment or not is still controversial, the writer believe, unauthorized sublease contract can causes unjust enrichment. Because the purpose of unjust enrichment lies in the beneficiaries maintain the legitimacy of the interests in the course of property changes. Then discusses rules of exercise unjust enrichment, alongside the other Anspruch, you can choose to exercise.The sixth part describes defects and improvement of unauthorized sublease system under the legal system in China. Under the existing civil law, the article introduces that oly Contract Law Article 224 stipulates the system of unauthorized sublease. The provisions are too simple, therefore, it should be perfect provisions of unauthorized sublease system,including the pre-emptive right of sublessees and the lessor can claim the right to the sub-lessee based on ownership rights.In short, based on the theory of Germany civil law, unauthorized sublease contract should be an independent and effective contract, and it can cause unjust enrichment. China's legislation stands that unauthorized sublease should be a pending-validity contract, it will violate the essence of the contract, the principle of relativity of contracts, the principle of freedom of contract and is not conducive to the protection of transaction security. Therefore, Legislation should amend the provisions of the pending-validity contract, and improve the provisions of unauthorized sublease, so that it can adapt to the needs of socio-economic development.