Lease Rights Jus Analysis

The Chinese civil law, which is oriented by the civil law system, has the difference between the obligatory right and the real right. From the recent time, these two kinds of rights have combined to each other to some extent, besides the demarcation line between them also has some vague places. Therefore some scholars point out that this is a phenomenon of the obligatory rights of real right and the real right of obligatory right in the modern civil law. The real right of the leasehold is the example. The lease contracts produce many kinds of rights and obligations, but to obtain the benefit of using the leased things is the main purpose of the lessees, so the content of their right is mainly to use the leased things. The leasehold has another name called "use income right", which is that leaseholders depend on the lease contract, in thing of leasing being after paying to lease thing enjoy for use income purpose occupying general name of right essential. Because the leasehold itself regards using incomes as its content, in addition, the lessees are generally in the weak status in the social economic life, therefore, it is necessary to give the special legal protection to the lessees. Thus the real right of the leasehold is produced. We have no necessity to distinguish the real right and real right of leasehold of the leasehold in this text. The real right is the static description of this kind of right nature, the real right is the development description of it. As the article showed, though the lease contract is a typical obligatory rights contract, it do not only cause the legal relation of obligatory rights between the parties, but also it has effect of obligatory rights. Sequentially, it causes the legal relation of the real right and the efficacy of the real right. Leasehold should include the following meanings: First of all, there must be legal and effective lease contracts, namely the legitimacy, validity of its right source. Secondly, the leased things must be handed over before the leased things done. Although the leassee have corresponding rights according to the lease contract, they do not enjoy leasehold at this moment. Moreover, the content of leasehold is the benefit of using the leased things, which is the benefit nature. Finally, it also should be regarded that the occupancy of the leased things is essential, which can be the reality occupancy here, and also be the fiction of occupancy. Subsequently, according to these views of the leasehold's nature, namelyobligatory right theory, real right theory, real right argumentation. Form the development history of the real right of leasehold, and the promotions of the theory and legislative practice, the author thinks that real right theory corresponds to the reality. The real right of leasehold embodies in: Face-off strength to the real right change of leasehold; The lessee opposes the third person's right directly when being encroached on leasehold; For the leased thing and thing right the lessees have limited punishment rights; The right to the lesser of leasehold is restricted. On the analysis of the real right of leasehold and real right effect, it is expounded the fact law that real right render a service their reflect. At first, it is observed the production and development of the principle of " buying and selling don't break the lease ", and every national law design about different law standard of this principle. This principle makes that leasehold begin to have real right effects and some corresponding system must be established in the legislation to support and perfect its real right and render a service. These systems include: Passing of title to the leased things do not influence the current lease relation, establishing the real right of the leased things do not influence the current lease relation. The lease contract is not cancelled certainly because of the bankruptcy of the lesser, the preferential purchase right of the lessees, the dominance right of the lessees, lessee must mention and exclude from hinder and from tell in one...