On Lessee Protection Systems

The legislation concerning leases of real estate (in Germany, Switzerland, Japan, China’s mainland and Taiwan area) generally embraces "Lessee-centrism". It provides protections in favor of the lessee through a series of legal means. As one of the most important leases of real property, residential lease should follow the same regulative principle, namely,"Lessee-centrism". In continental law system, due to the distinction between obligatory rights and rights in rem, the provisions dealing with rental relationship are specified mainly on creditor’s part.Obviously,"Lessee centralism" implies that in legislation policy judgment plays a more important role than the purpose of regulation itself. It also makes the leasehold turn to have the character of real right. For tenants, house rental means an alternative achievement of the "Home Ownership Scheme" ideal; means that there is a home harbor. Therefore, based on the assumption that most of the lessees are poor in economics, legislation in many ways gives them favoring protections——transfer does not breach rental, mortgage does not breach rental, lessee’s right of pre-emption system, right of lessee to ask for nuisance removal, and so on. In particular, the principle of "Kauf bricht nicht Miete"(sales does not breach rental) and the pre-emption system are the result of policy judgment of legislators. They are the two core institutions for lessee protection.The two institutions, laid down in the Section229and230of Contract Law (1999), make lessees’ relations with their landlords go smoothly. With the development and progression of market economy and commercialization of residential market, many scholars say:the legal basis for lessee protection altered——considerations over Weak Protection and efficiency disappeared;"Lessee-centrism" was challenged; co-existence of "Kauf bricht nicht Miete" and pre-emption system harmed interests of lessors and third party seriously. Then, does lessee protection have any legal ground? Whether there is an objective justification for law policy? Whether lessee protection belongs to excessive protection? How to balance the involving safety of trade, protection of the interests of a third person, restrictions on the right of ownership, freedom of contract, and so on? In2009, sections21-24of Rental Judicial Interpretation gave detailed provisions on the application of pre-emption right in leases. Does this suggest the necessity of legal protection? To clarify these issues, is significant for the theory and judicial practice of lessee protection. This is the aim of my paper.The paper is divided into four parts:the first part gives an account of the basic content of lessee protection system. Furthermore, some debates among scholars towards the abolition or retention of the two core systems are introduced.In the second part, I will analyze the rule of "Kauf bricht nicht Miete". First of all, explain the rule, mainly in terms of its conception and "making the obligatory right turn to have the character of real right" to clarify academic controversies. Then, expound the value of the systems in three aspects. Secondly, illustrate legislative cases of the rule of "Kauf bricht nicht Miete", including our country’s legal regulations on the rule and foreign legislative cases of Germany, Switzerland, France, Japan and Taiwan area. Based on this, I will express my own macroscopical opinions on foreign legislative cases. Thirdly, study the efficiency of tenant’s rights.The third part explores lessee’s right of pre-emption. Firstly, assess the abolition or retention debate.Define the pre-emption right and describe its legal nature. Then, introduce debates on whether to abolish or retain the right and give my opinion:it is needed, because the advantages of this right outweigh the disadvantages. Secondly, examine legislative cases of the pre-emption right at home and abroad. Thirdly, analyze the relationship between lessee and a third person and investigate the efficiency of pre-emption right.The fourth part talks about system guarantee for lessee protection. At first, review sections229-230of contract law as well as relevant judicial interpretations. Secondly, make clear constitutive elements of the exercise of lessee’s right. In the end, learn from foreign advanced housing system and policy. Introduce the outstanding housing system and policy of Switzerland’s and Singapore’s. Present the development of our country’s housing policy, and then arrive at a correct understanding of housing policy:in our country, lessee protection system is reasonable, because it accords with national conditions and civil legislation with Chinese characteristics.