Study On The Preemptive Right Of Housing Lessee

The system of the preemptive right of housing lessee reflect the social life's demand for the rule of law and it has the value for social services(for the convenience of exposition, the preemptive right of lessee means the preemptive right of housing lessee in this article). Though there're relevant laws about preemptive right of housing lessee in our country, they're so rough that they're lack of interoperability. The theoretical circles have not reach a consensus on some basic problems of the system. This article provides some legislative proposals to improve the system based on discussing the nature, the exercising conditions and the legal effect of the preemptive right of housing lessee.The first part of the article is about the general theoretical discussion of the system of the preemptive right of housing lessee. It mainly exposes the concept, the features and the nature of the right. The preemptive right of housing lessee, means that when the house owner sells out the leasehold during the effective period of the leasing contract, the citizen or the juridical person as the lessee has the right to take precedence over other buyers to buy the leasehold under the same conditions according to the law. The right is a kind of legal right and exclusive right and it's a restriction on the exercise of ownership of the house owner. As the nature of the right, there're opinions of the right to form, the right to look forward ,the right to request for a priority party, etc. The author thinks that, the opinion of the right to form puts too restrictions on the exercise of ownership of the lessor and too much protections on the lessee; as the opinion of the right to look forward, its concept is too vogue to prevent us from characterizing accurately of the preemptive right of housing lessee. The author agrees with the opinion of the right to request for a priority party: the preemptive right of housing lessee is a kind of the right to request for priority parties, the request is to be a priority party, the result and the specific performance are that the right owner takes precedence over other buyers to enter into a contract for the sale of housing under the same conditions.The second part focuses on the prerequisites, deadlines and the same conditions for the exercise of the pre-emptive right of housing lessee. As the prerequisites of the preemptive right of housing lessee, scholars focus on the understanding of the owner's act of selling out the housing. The author thinks that, the owner's act of selling out the housing should be understood as the act of setting up a contract for the sale of housing between the lessor and the third person. As the deadlines, the author believes that the time limit of "three months" in our law is only bound by the obligations of the lessor to notice the lessee. We should improve the deadlines of the preemptive right of housing lessee in subsequent legislation. The author suggests the lessee express the declaration of intention to buy the house or not within 15 days when receiving notification from the seller. As the same conditions, we should take the conditions in the contract between the housing lessor and the third party as the criteria; as the content of the same conditions, through the comparative analysis of opinions of various scholars of our country , the author thinks the same conditions should be considered by eligibility, price conditions, the way and deadlines of payment and other factors.The third part focuses on the effectiveness of the preemptive right of housing lessee. Whether the preemptive right of housing lessee can defend the third person depend on whether the right has registered publicly. If it has registered publicly, it will have the effectiveness of property rights and it can defend the third person, no matter the subjective state of mind of the third person is well-intentioned or malicious; if it hasn't registered publicly, the right will be bound by the seller only and not have the power to fight against the third person in good faith. As the conflict between the effectiveness of the preemptive right of housing lessee and other preemptive rights, there's no conflict between the preemptive right of housing lessee and co-owners by shares; if there's conflict between the preemptive right of the lessee and sub-lessee, the sub-lessee should take the priority to exercise the preemptive right.On the basis of the evaluation of the law and judicial practice, with combination of the three parts above, the fourth part provides the legislative proposals to improve the system of the preemptive right of housing lessee in the nature, the exercising conditions, the effectiveness and the legal remedy of the right.