Studies On The Rule Of Non-lease-breaking Sale

Traditional civil law distinguishes between real right and creditor's,and gives the effectiveness of their different.The former is absolute right to go against anybody in the world,while the latter is relative right without such effectiveness.Therefore,the real right has the effect to get rid of the credit's right in the same thing,which has been regarded as a model in principle since Roman law.With requirements of the times,civil law system countries in relation to the rules produce new change, to some extent,creditor's right is endowed with the effectiveness which can go against the real right under certain conditions.The civil law of German firstly acknowledges that rule,while Switzerland consides it as general provisions for its complement,even more, Japan stipulates the application of the rule.The paper seeks for the sequence of the change to analysize the rule,such as the generation,effectiveness,deduction and in China's applicaion,with a historical perspective and comparative method.The paper is divided into four parts.Part I goes along the fortune of the system to clarify from the historical background of the Roman law which insisted sale should break lease to social basis when majority of countries admit non-lease-breaking sale.Part II clears the suitable application of the rule with the comparion of its application,such as three elements said,four elements said and five elements said,utimalely summing up the requirement of the application of the rule.First of all,there is a valid lease indeed.Secondly, the lease has been delivered and actually possessed of the lessee.Lastly,the lessor sells the lease to the third person.As a result,the possession reformulation and instruction delivery is inconformable with the rule.Then paper discusses the change of right and obligation in the lessor,lesse and the third one caused by the rule,trying to reveal the connotation of the rule that the existing leasehold affects the buyer.Part III discusses the possibility of rule's expansion of application on the basis of seizing its spirit and cmposition.Then refers to the lessee's possible right to claim the lease of possession occurred on non-trading property change,such as bankruptcy liquidation,emphasising that non-lease-breaking mortgage regulation of Guarantee Law of China is inevitable evolution of the rule. The final chapter reviews legislation of China's rule.Owing to the shallow theoretical study and rough legislative technology,there are certain disadvantages in present legislation,such as the scope of the lease,effectiveness,content.With pointing out the defect,the article proposes some constructive comments,for example,broadening the application,defining the effectiveness of the registration.As a restult,the legislation of the rule in China can be improved.