On The Perfection Of China's Lessee Preemption System

Tenant preemption system is the very important system of civil law legal system, its existence and operation plays an indispensable role in maintaining and adjusting for the interests of all parties. The establishment of any legal system and development is to realize its proper value function. However,any legal system is non-perfect,and may depart from the original value during operation. That is to say, the establishment and development of the legislative intent of Preemption system is consistent with the value function of selected, but unexpected problems have shown in practice,contrary to the legislators. In order to solve obstacles to the exercise of rights of tenant's real life, the core theme of this paper is that the system around the problems in practice and how to improve the tenant to explain the preemption system. From the logic of structure, this article divided into five legal system was discussed:The first part discusses lessee preemption system status in our domestic legislation, which is also the starting point of the entire article. As we all know, Prevalence of the world, several legislative system comparison ,China's legislative system, full of characteristics.China's legislative system is not a single legislative system,nor is it complex legislative system, which determines the complex division of China's legislative authority and China's current level of serious legal effect level.This paper from the laws, rules, regulations, judicial interpretations and other norms of different effect start with a brief account of the preemption system of laws and regulations, the lessee of regulation, continue to pave the way below.The second part discusses Inadequate legislation of tenant preemption system.This is based on our current situation on the consideration of the legislative system, that the system not only repeat the set, raw, and full of loopholes, no operable. Embodied in the following aspects: law does not provide housing tenants the right to confirm the relationship between trading; law does not provide appropriate penalties; law does not collusion between the lessor and the third act to be limits; law does not specify the exercise of pre-emptive timing, duration, conditions and methods; law does not specify the conflict preemption principles. The existence of these legislative deficiencies,for the operation of the system in real-life problems in the process and pave the way, is the lessee one of the main obstacles to the exercise of power.The third part discusses preemption regime tenant problems in practice. The problem is the lack of legislation reflected in real life. The main problems are:Impede the exercise of tenant rights, including violations and exclude pre-emptive exercise of the tenant's circumstances; During the proceedings problems, mainly refers to the determination of dominant position of parties to litigation issues and the determination of verdict; The issue of preemption of the competing rights involved in the broader conflict, there is the lessee and the owner kept the competition preemption, there is the lessee and sub-lease preemption of competition were kept, there are multiple tenants right of first refusal and Lessee and the mortgagee's right to exist competition problems. If these problems are not well resolved, not only the establishment of the legal system can not be achieved when the value function, and not conducive to the construction of our legal system,not conducive to the full unity of civil law system.The fourth part discusses the reasons of tenant preemption other than lack of legislation, Including the theory of defects and the law applicable to conflicts. Theory of defects mainly in the legal value of such right, the legal nature and the same conditions, and other differences. As a long time debating on the theory, there is no unified theory of the findings on the legal system.Else, in Judicial practice, the law applicable to the conflict, Preemption disputes led to the emergence of cases the results of different sub-co, Seriously affected the fairness of our judicial and seriousness.The fifth part is the core of this chapter,mainly discusses how to improve the preemption system. As the theory of defects, inadequate legislation and conflict of law application, Preemption system in practice led to a lot of problems arise.To solve these problems, this paper proposes some measures to improve the system. Mainly from the physical and procedural discourse on how to improve the legal system. The entity's perfect to use mainly in the nature of the housing, the right to exercise duration, form, conditions, protect the legitimate rights and Penalties for violation of the consequences of tenant right of first refusal.Standard rental housing registration and filing system, balance the rights of the principles of conflict;Improvement of the procedure mainly in how to make the lessee the right of priority to buy direct implementation in the proceedings, and how to protect the legitimate interests of the lessee in the trial and execution procedures.Finally, conclusions as the end of this article. As a controversial legal system, Tenant preemption system not only has its social foundation and legal basis, but also exists a system of its value function and the human feelings. Although many of the system itself is not so perfect,everything has two sides, We first want to see the main aspects of contradictions.That is to say, preemption of Tenant its own value system is the main aspects of conflict. The right of preemption as a form,its existence has great theoretical and practical significance. It plays an irreplaceable role for the protection of the lessee's right of residence, Safeguard the interests of socially vulnerable groups, Stable housing tenancy, make the best use.Therefore, legislation should continue to improve the legal system in the future.