On The Legal Positioning Of Priority Tenancy

With reform and opening up and the development of market economy, tradingactivities between civil subjects have become increasingly frequent, and the civilright-obligation relationship also becomes more complicated. Leasehold relation is animportant civil legal relation, wherein the issues about priority to lease are graduallygetting importance. Priority to lease refers to, if the lesser rents the house again uponthe expiration of the lease contract and the termination of leasehold relation, theoriginal lessee enjoying the priority to lease the house than others under the sameconditions. Now there is no relevant regulation about the priority to lease in the Lawof our country, but it is only stipulated in some local regulations. Some scholars andjudges hold that the priority to lease can be inferred from the preemptive right, and itsapplication should also be in reference to the provisions of the preemptive right.However, in judicial practice, the issues about the priority to lease have becomeincreasingly prominent, for example, if the original lessee claims the priority to leasein a leasehold contract, how should the court make the decision and how do theparties perform; and the priority to lease should be determined by legislation orshould be stipulated by the parties. Various factors, such as different understanding onfacts and laws by the judge, usually lead to different verdicts for similar or same cases.Therefore, this article aims at making analysis on several issues about the priority tolease to explore the legal orientation of the priority to lease, that is, whether it needs tobe determined by legislation.The introduction raised a question about the priority to lease from two cases inthe first place, i.e. how to deal with the related problems in practice, and then madecomprehensive analysis for the theory. The first chapter is divided into four sections,and makes introduction from the following four aspects: the definition on the priorityto lease; legal nature of the priority to lease; constitutive requirements; anddiscrimination between confusing priority to lease and preemptive right, so as to havesome understanding on the basic profile of the priority to lease. The second chapter started from the legislation at home and abroad and then differentiated the theories forthe priority to lease in the domestic academic circles. The third chapter is the core partof this article, including five sections, and it explores the necessity of legislation forthe priority to lease. The first section demonstrated that the existing basis for the lawapplication of the priority to lease is untimely from the two aspects of untimely socialenvironment and low operability of judicial practice; the second section made legalprinciple analysis for the priority to lease violating the equality, the principles offairness and equality and the principle of autonomy of will in civil law; the thirdsection, in combination with case I, made analysis to draw a conclusion that thepriority to lease is conflicted with the principle of auction in legal principle and inpractice; the fourth section made deep analysis that the reasons for legal rights of thepriority to lease are insufficient from the following two aspects: lack of legitimacyfrom maintaining stability of legal relations and possibility of damaging the leaser’sinterest; and the fifth section is about lack of operability for legal practice of thepriority to lease, mainly under three circumstances, i.e. it is defective that the leaserfulfills the obligation of notification, the leaser deliberately evades laws and the leasermakes malicious collusion with the third party. The fourth chapter is about theproblems in applying the priority to lease in practice based on the former threechapters, for example, making clear the applicable subject, the period for exercising,the same conditions, right relief etc. This article explores the legal orientation of thepriority to lease by the methods of case analysis, comparative analysis, legal principleanalysis in combination with judicial practice, that is, presents a viewpoint that legalexistence of the priority to lease is unnecessary, i.e. it is unnecessary to stipulate it bylaw, but the parties can make agreement, so as to make a contribution to the similardisputes in practice.