The Safety Guarantee Obligation Of The Lessor To The Lessee In The Illegal Sublease

With the rapid development of our social economy, tens of thousands of peopleemerge into the city, making a serious shortage of housing supply, and the soaringhouse prices also lead to the "big bang" of housing rental market. Based on the needof real life, sublet becomes a common phenomenon. Because our country’s lawsadapt an restraint legislative model on sublet, without the consent of the lesser, thelessee shall not sublet, causing a lot of problems in practice, such as the effectivenessof the contract of sublet can not be recognized, the lesser asks the lessee to move outof the rental house, the lessee bring claims for compensation for personal injury inrental house and series of legal problems. This article only focuses on whether thesub-lessee can ask for compensation when the lessee suffers personal injury in thesituation that the lesser doesn’t agree to sublet. In practice, the court generallyrecognized that the sub-lessee’s rights and interests shall be protected in time, but tosome extent it is different, some courts hold that the lesser shall bear tort liability,some courts hold that the lesser and the lessee (sub lesser) shall bear joint tort liability.Although providing oriental protection to the disadvantaged conforms to the essenceof justice of modern civil law, but the different judicial practices of similar cases arenot conducive to form a guiding principle, at the same time we also need to find areasonable theoretical basis that why the lesser should bear the tort responsibility tothe sub-lessee in the case of illegal sublease, that is also the purpose of this study.In this paper, first of all, we see that the courts hold different attitudes toward thesub-lessee killed by carbon monoxide leak of gas water heater in rental house throughtwo practical illegal sublease cases, leading to the purpose of this article why thelesser should bear the tort responsibility to the sub-lessee in the case of illegalsublease. In view of the housing rental market is still in the initial stage in our country,research on the rights and obligations of the lessee and the lesser is not enoughin-depth, so the second part and the third part mainly focus on the introduction anddiscussion of lesser’ obligations of the Continental law system and Anglo-American law system. This paper introduces the nature and origin of the obligations of thelesser in German, and the affections of the faults of the lessee and the third party tothe lesser’ security obligations. Because our country mainly inherits the tradition ofGermany law, so the difference of provisions regarding the obligation of the lesser isnot big, and illegal entrants such as thieves is very different from the legal status ofillegal sublease, therefore can not be the good reasons for the conclusion that thelesser shall not bear tort liability. As a statute law country, Japan mainly adjusthousing rental relationships by civil code and special lease legislation, as well as ourcountry, in principle, the security obligations should be borne by the lesser, and to thesublet, Japan also takes restraint legislative model. But Japanese scholars have donein-depth research on the lesser’ maintenance obligations, some scholars takemaintenance obligations as the lesser’ absolute obligations, even on the premise of thelessee having faults is not released, At the same time, thanks to Japan’s unique systemof jurisprudence, in most cases, the courts admit that the legitimacy of sublet andstrictly limit the lesser to exercise the right to remove by judicial initiative, greatlyprotecting the rights and interests of the sub-lessee, maintaining the stability of thehousing rental market, revising the conflict of the statutes with social reality,providing a good theoretical and practical support for that the lesser should bear thetort responsibility to the sub-lessee in the case of illegal sublease in our country. InCommon law, the obligations of the lesser is equal to the obligations of real estatepossessor, mainly introduces the development of real estate possessor’s obligationsand the allocation of housing maintenance obligations between the real estatepossessors. Real estate possessor’s obligations vary from the identities of the foreignvisitors, according to the intruder’s purpose, giving different legal protection. Forexample, some states divide invaded people into pure intrusion and crime invasion.The allocation of housing maintenance obligations between the real estate possessors,America takes the original tenant caveat rules, after some time, America takes theimplied warranty rules of habitability of lesser. The fourth part is summary andanalysis of legislative and judicial status of security obligations of lesser in China,and puts forward concrete suggestions to strengthen the protection of sub-lessee inillegal sublet. This article focus on the sub-lessee asks for compensation for personal injury inillegal sublease, this legal issues should be solved urgently in practical life. On theone hand, we agree that the court give oriental protection to the sub-lessee, on theother hand, we also point out that the court have no clear and unified understandingabout the legal status of the sub-lessee and the lesser’ security obligations, and in ourcountry the legislation and theoretical researches on the obligation of the lesser aretoo little. Therefore, this paper takes the lesser’ obligations as a starting point,comparing the legislation and practice of other countries’ experience, exploring theessence and the source of the obligation of the lesser, summarizing other countries’actual attitudes and practices on sublet, in order to provide beneficial practical andtheoretical support for that the lesser bear security responsibilities to the sub-lessee inillegal sublease, therefore this article has higher application value and academicvalue.