| From the lessee's right of first refusal of the priority system of civil law, has a long history. The system is the principle of freedom of contract and autonomy concessions to protect the interests of the weak product of society, state intervention in economic life is the reflection in the law, the law expressed concern about the interests of disadvantaged groups and cultivate the spirit. The system also conforms to the modern concept of property rights in all material from the focus on the ownership to a focus on the use of property trends. Search our current law, although the relevant provisions of the pre-emptive rights on the tenant, but were too clumsy, immature and incomplete legal system will reduce the social function of law, as well as the operation of the new problems emerging. As China's market economic system and deepen the development of commodity economy, rental has evolved livelihood of the major social problems, combined with academics has always been the legal property of the tenant right of first refusal to exercise conditions has not stopped debate on the issue. Therefore, the relief the contradictions in the judicial practice it is very urgent. In this paper, our existing law on the basis of the existing housing tenant for the exercise of right of first refusal in the course of the defects revealed, make corrections and improve the system's legislative proposal, the maximum benefit of the legal system play social function.The first part of this paper, the basic concept of tenant right of first refusal as a starting point to explain the theoretical origin of this system, judicial profiles, and other aspects of property law, from the macro analysis of the existing legislation in this area status and academic differences. Then, standing on the dimension theory of modern civil law, explain the legal characteristics of pre-emptive rights. Finally, the importance of social life in the preemption system in the rationality and necessity of existence, with the weak protection of society, improving economic efficiency, promote social harmony value orientation.The second part discusses in detail the tenant right of first refusal limits the exercise and the exercise of force. Conditions for the exercise of pre-emptive rights, the article mainly from the legal and valid exercise of the lease contract is a prerequisite for pre-emptive rights to "equal conditions" for the real condition of the main body of the scope and exercise of certain of the exercise period to discuss these aspects. One of the "same condition" is the core of preemption discussed some driving conditions, the "same conditions" should be identified as "housing for all and the third terms of the contract agreed upon." The reason why the same conditions the provisions of the law is to balance the interests of all parties to protect the interests of all parties are not infringed.The third part of the exercise of the right to housing tenant conflict preemption, the right to exercise a certain inevitable realization of the right to exclude others. This paper analyzes the housing sublease and sub-tenant is the lessee, the lessee and the total priority for repayment between the rift between. Relief is the key conflict of rights, should be based on "benefit both the minimum when weight" principle for processing.The fourth part, based on the full text of current legislation on the tenant right of first refusal of the drawbacks of the system, and made some specific recommendations Legislation that deal in improving the legislative and judicial cases, pre-emptive rights of the lessee disputes, it is necessary to guarantee the full exercise of the rights of the lessee, but also to prevent the abuse of pre-emptive rights to the detriment of the lessee and the lessor commercial interests of the legitimate rights and interests of bona fide third, to find a balance between these three. |
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