Priority To Rent The Empirical Research

With the development of the market economy, the relation of lease has become a more and more important civil legal relation. House lease is one of the main way that people take advantage of scarce houses. The market of house lease is playing more actively, then it arises many new problems in its development. With the increase of the civil disputes about the priority of house lease, it is paid attention by more people and gives rise to discussion in jurisprudential circle. The priority of lease in this thesis is the priority of house lease. Although the general viewpoint is that the priority of house lease should be admitted, because the priority of lease lacks of specified laws and regulations, it brings perplexity to the court. This thesis aims to point out author's viewpoint on how to establish the priority of house lease by means of studying its nature, constitution,value etc., combining the exploration of related system abroad and the discussion of related cases in the trial practice in our own country, in order to improve the legal norm of the relation of house lease and make the effect of the house lease market sufficiently. It will both protect the right of lessee and insist on the balance of the profits to maintain the right of lessor. It will both protect the stabilization of the lease relation and promote the development of economy.The priority of the house lessee will be discussed in four parts in this thesis.Part One is to introduce the operation actuality of the priority of lease in judicial practice. Though the priority of lease is set in the related regulations in Shanghai, Wuhan,Xiamen etc., there is no legislative rules on priority of lease in our country, therefore, the priority of lease is not the legal right. The agreement about the priority of lease between parties is not standard and it is easy to bring divergence in understanding, furthermore to avoid this right is often happened. In the process of using the priority o lease in real life, it is very easy to bring litigation. There is no regulations and foundation about the execution deadline, same conditions, limit of the lessee's right etc.of the priority of lease, so we have to face the difficulties that it leads to waste resources and abuse rights etc.. On account of the shortages above, if we want to reach the expected effect of the priority of lease, we should make laws.Part Two is to observe the related systems at home and abroad in comparative laws. In France, in order to reply the crisis of the real estate which was raisen by war and protect the profits of the business lessee, it set up the right of business lease renewal and established the perfect business lease system, it specified the body of right,efficacy and result etc.. In Britain, it gave the business lessee the right of update lease. In America, the government rarely intervene business lease, but it controlled the lease and established the lease control system to protect the lessee in the house lease which goal was to live with family. In Germany, it complied with the principle of the contract freedom, the right of business lease renewal was only limited within the provisions of the agreement and never legalized.Part Three is to research on the theory and system of the priority of lease. Nowadays, there is no specifications about the priority of lease in legislation in China, but according to the related regional regulations, judicial principles and legislative spirit, in reference of the regulations about preemptive right of house lessee in the contract law, the concept of the priority of lease is that:when the lease period is expired, if the original lessor continues to rent and the original lessee wants this house, under the same conditions, the lessee will have the right to lease priority to other people. The priority of lease is expective right and right of claim with forceful treaty obligation, it is subordinate and public policy. Because the right comes from credit, although it has the nature of real right, it belongs to credit.In practice, it is better to think about how to make the priority of lease real right according to the character of the house use esp.to the houses for business. The priority of lease should fit some constitutions as follows:firstly, long-term valid lease relation; secondly, the intention that the lessor continues to rent; thirdly, the intention that the lessee wants to renew; fourthly, the same conditions of priority of lease. The priority of lease has the value of maintaining market order, improving trade efficiency and protecting justice. To some extent, it reflects the necessity of legal rules in society. If the priority of lease is legislative, it should be set in conditions, deadline and relieves etc..Part Four is to discuss the improvement of the priority of lease combining the trail case and to point out suggestion. Firstly, as executive deadline of the priority of lease, if it is not included in the contract, it may be three months starting the date after the termination of the expiration of the original lease relation. Secondly, the examining range includes the lease price, the lease time, payment and the way of lease, the use of the house, etc.. Furthermore, if the lessee sublets the house illegally, breaks the contract or lets publicly, it will remove the rational reason of the priority of lease. Fourthly, the priority of lease can't compete with third party acting in good faith. When the priority of lease of the lessee is violated, the injured party can only ask the defendant to undertake responsibility of breach or compensate for loss.The priority of lease can protect the profit of lessee and maintain the lease market order, but it is still in the starting stage. Via improving the legislation and practice, the system of the priority of lease must stabilize economy order, enhance trade efficiency and promote social justice.