| As one of the legal system, the house lessee's purchase priority had already been established in our civil legislation a long time ago, but the stipulation to this system in the modern law is over generalized and scarce operated, there are no unified norm for its basic content, it causes the difficulties and confusions of the law practices, and it also badly infringed the lessees. In view of this, this paper compares and uses foreign ripe legislative experiences for reference on the basis of the legal provisions now in our country, examining the problem exposing in trying practice of purchase priority to the lessee, enforcement and realizing carrying on the deep discussion and studying to this right especially, in the hope of perfecting lessee's purchase priority system, safeguarding the lessee's legitimate rights and interests , as well as promoting the safe trade..The main content of the article is divided into three major parts. The first part has introduced the origin, the social function, the necessity of research and also the legal nature of lessee's purchase priority mainly.The second part emphasizes on telling the enforcement of the lessee's purchase priority. At the beginning of this part, it discusses the prerequisite of enforcement of this purchase priority, namely the primary problem is whether the purchase priority does happen or not. It believed that the existence and enforcement of the lessee's purchase priority are totally two different concepts, the existence is about to solve the problem whether the lessee does have the prior right of purchasing. Once the lease contract is established effectively, the lessee's purchase priority should be mentioned in thecontract certainly no matter whether these two parties do have an agreement on it. The condition of selling which the lesser puts forward and the "equal condition" which the lessee puts forward, belong to the prerequisite of enforcement to the purchase preference. And some examples and discussions are given on some common situations in practice which are with or without the purchase priority. And it also discusses the correct comprehension on "selling the lease house" and the "equal condition", "selling the lease house" means that the seller send a quote to a third party or give an acceptance to the quote from a third party. The "equal condition" should be explained by adopting the intention restraint, it means that under the circumstances that lesser and the third person are the deal behavior situation in general meanings, the "equal condition" should be understood in an definitely equal way, and on the other hand of very appointed special deal situation, it should be understood on an relatively equal basis. In this paper, the notice period of the lesser and the time limit of reply from the lessee should be discussed respectively, the notice period of the lesser should start from the time when he put forward the quote publicly and will last for three months according to the present procedure customs. The content of the notice should be the specific terms of transaction between the lesser and the third party. To the lessee's reply time limit, the lessee should determine in three months after receiving the notice whether to exercise and buy right first or not. So, "three months" are the period for the lessee to wield the purchase priority. On the problem of how to confirm the time limit of purchase priority for the lessee while the lesser does not perform the obligation ofnotifying, author of this text thinks that the purchase priority is a form right, its period is suitable for the divided prescroption period system not the lawsuit one, so the period of the enforcement is also suitable for the divided prescroption period system, the specific time should be in accordance with the notice period of the lesser, say three months. In the mean time, to make the regulation on the selling period for preventing the lessee from making use of not knowing the fact, delaying the priority to exercise, and endangering the stability and security of the trade. Comparing the period of the canceling regulation in our country law, it would be offered one year of divided prescroption period.The third part is about the realization of the lessee's purchase priority. On this subject, the discussion organized in three respects that generally have the dispute from practice: the method of handling the conflict between the lessee's purchasing priority and the other types of purchasing priority comes first; then the problem of how to protect conscientiously while judging in the trial procedure; finally the solution for the conflict of trade opportunity with the good-willing third party. Author thinks that the conflict on purchase priority between the lessee and the cor-possessor. It can be investigated from two respects: First, the nature of purchase priority; Second , the legal meanings of setting up two kinds of systems. It should be balanced by insisting the value orientation on "pick the better benefits after comparing", and confirm the cor-possessor's purchase priority takes precedence over the lessee's. The lessee always enjoys the purchase priority while there is a conflict between the lessee's purchase priority and the hypothec, no matter thehypothecating comes after the lease or the opposite way even when the mortgage wields his right hypothec. While the lessee appeals to the People's Court to declare the transaction contract between the lesser and the third invalid and confirm the purchase priority of the lessee, the People's Court should declare the house transaction contract between the lessee and the lesser valid, and the prerequisite is that the content of this contract is in the "equal condition" with the contract between the lesser and the third party. When there is a conflict between the lessee's purchase priority and the trade opportunity of good-willing third part, the purchase priority can oppose the third party.In the end of this paper, On the basis of analyzing legal loophole in this purchase priority system, and combining the dispute mentioned in the foregoing, author proposes the suggestion to perfect the legislation on this priority, in order to protecting the purchase priority and avoiding the phenomenon of enforcing the law ununified. According to the author, the principle of the validity of lessee's purchase priority should be established, the restriction should be taken not only on the period and method of wielding the purchase priority, but also in transfer, inheritance and auction, further more, author put forward the method of protection during the trial procedure. |
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