On The Application Of The Right Of Preemption Of Lessees

The right of preemption is an important right in the Civil Law, there are many regulations in the Continental Law System Countries. The regulations of the right of preemption are quite scattered in our current laws, it has stipulated the chapters of the priority in the Property Law of China, but it has been deleted, because of its legal character in big dispute. With real estate market increasingly mature and real estate industry related reforming in China, housing rental market has become increasingly active. The lessee is in the weak part in the housing rental legal relations, the lessee relative stability of the right to live and life shall be protected, and the leased house can also make a specific purpose. The right of the lessee preemption is based on the claims, its propose is to protect the living stability of the lessee, when the lessor is going to sell his house. Before the lessor selling his house, the right is a kind of probability the lessee is looking forward to, it needs to follow strict conditions to comply the principle of the system, once it is applied.This passage is divides into five parts, besides the introduction and the conclusion. It discusses the application of law of the right of the lessee preemption, mainly from the right balance and social justice viewpoint.The first part of this passage is the overview of the lessee preemption right system. The right of the lessee preemption is that the lessee can prefer to buy the house in the same condition, when the lessor decide to sell his house, at the same time, the lessor must tell the lessee the truth that he will sell the house three months ahead, in the lease law relations. According to the regulations in the Contract Law of China, this right of the lessee preemption is based on the creditor right, its propose is to protect the living stability of the lessee as the vulnerable partner, and to maintain the social order and efficiency.The second part of this passage is the right of the lessee preemption in the subletting contract. The illegal releting is naturally invalid, but legal releting has become the common phenomenons in house rental market. After the lessor’s consent, the house can be leased to the other one again, the new contract is established. The lessor can know the second lessee in advance, the second lessee actually possesses and use the house, at the same time, his preemption right is based on the releting contract, so his right should be protected in time.The third part of this passage is that the questions of the lessee preemption right, when the whole house is divided into parts to rent. Because the lessee is mainly lack of economic ability, he has to rent the part of the whole house, we can not deny his qualification as the lessee to make the lessee preemption right eroded. The whole house can be divided into parts to rent, when the lessor decides to sell the whole house, the right of the lessee preemption should contain the whole house, while the whole house area is too large, it will be beyond the economic ability of the lessee, the conclusion above will be not supported.The forth part of this passage is the right of the lessee preemption in the forced auction. There are certainly conflicts between the auction rules and the lessee preemption right, so that some scholars deny the lessee preemption right in the forced auction. The auction is a special kind of business conduct, when the lessor can sell the rented house in auction price, we need to take into account of the interests of the lessee. So the lessor or the auction organization shall timely notify the lessee to participate in the auction program, the lessee can decide whether he will buy the house in highest biding price by himself.The fifth part of this passage is to discuss the conflict and solving of many lessees’preemption rights. In both the lessee and the releted contract lessee occasion, the latter’right should be protected. In the effective term of the releting contract, its lessee’right should be protected. Once the releting contract’deadline is expired, if the lessor agreed to continue to relet, its lessee right is still legal and must be protected; if the lessor doesn’t agreed to continue to relet, the original lessee right should be protected. Our country law stipulates the preemption right of the share co-ownership parties, but it is not clear to how to exercise this right. The area of the mutual person owning is clear in the share co-ownership system, each lessee preemption right is equal, the seller can decide which person can buy this house by himself to change numerous for brief. In both the mutual person and the lessee occasion, there are co-ownership relation based on the property right and leasehold relation based on the creditor right, according to the property right prior to the creditor right, the preemption right of the mutual person is prior to the right of the lessee preemption.