The Preemptive Right Of The Lessee System Analysis And Improvement

In this paper the basic case to case studies: Shi and osmanthus company housingrental contracts signed, within the term of lease, osmanthus company housing will besold to third Liu and for the housing property transfer procedures, Shi thinkosmanthus company did not fulfill the advance notice obligation, violate itspreemptive right, then to the court prosecution of the lessor and third people signedhousing contracts of sale. Osmanthus company argued that its have obligation toinform, Shi for trading conditions and third different and cannot exercise itspreemptive right, and Shi prosecution has had right term of protection. The trial courtthat contract, a claim rejected stone. The case upheld the trial court, procuratorate topresent a protest, that the lessor and third people signed a contract for violation of theprovisions of law and invalid. Finally, maintain the second trial court of retrial.This case is the focus of controversy is the lessor and third people have signedhousing contracts of sale the validity of questions, but in this case is the key to graspthe preemption of lessee not be violated the problem. Due to China’s current laws andregulations on the preemptive right of the lessee issue prescribed relatively rough,resulting in the judicial practice on the nature of right, obligation of notification, thesame conditions as well as the duration of exercise problems of multiple perspectivesof dispute, thus led to a hearing on the case also put in different point of view. Theauthor try to pass on this case and the related legal problems are analyzed anddiscussed, in affirmation current legislation on the basis of the theory, throughscholars, consult foreign successful legislation to the case of the problems found inthe proposed own view and suggestions.Besides introduction and conclusion, is divided into five parts.The first part: according to the case study. This part mainly includes case, caseintroduction and trial and appeal cases.The second part: the case of the focus of controversy. This part mainlyintroduces the case in the trial of parties in the dispute, and the derivative of this paperis to explore the related legal issues.Part third: controversy and analysis. This part mainly with the cases focus relatedto four legal problems are analyzed, namely, one is how to recognize the right ofpreemption of lessee of the property; two is how to identify whether or not the lessor fulfilled inform obligation; three is to understand how the lessee pre-emptive exercise"equal condition"; the four is how to qualitative analysis and understanding of thelessee pre-emptive exercise duration.The fourth part: from the case of China the lessee preemption legislation defectsand perfecting suggestions. Through the case analysis and leads to the related legalissues, pointed out that our country Housing Lessee preemption system regulationlegislation defect; reference to foreign legislative cases, combined with the relevantscholars point of view, to our country on this system legislation flaw put forward theirown suggestions. At the same time on the preemptive right of the lessee to save thewaste dispute undertakes an analysis, think the system still has irreplaceable, worthyof study and improve.The fifth part: the conclusion of the study. This part mainly consists of threeaspects are introduced, one is on the protest ’s view of; two of the trial of the case thecourt’s opinion of; three is elaborated the author to this case.