On Perfection Of The Housing Lessee’s Preemption

Housing lessee’s preemption has a significant role in maintaining social stability,safeguard the basic human rights, China’s relevant laws to tenant preemptive right has beenspecified, and can not meet the demand of judicial practice, the theory about the lesseepreemptive right there are many disputes. In this paper, a case in the judicial practice as theobject of study, through the use of empirical research, comparative analysis and other methods,conducts the research to our country housing lessee’s preemption, points out the existingproblems of lack of our tenant preemptive right in legislation and judicial practice, and toimprove the suggestions.Articles in addition to the preface and epilogue, a total of four parts:The first part: the research case for all so-and-so v. housing lessee’s preemption dispute adepartment store. Basic facts are: the department of XXX is a department store all parts of thebuilding, the lessee in a department store in2009in the absence of notice Wan Mou entrustsome auction company to auction of the whole department store building, wan so-and-so to adepartment store after its appeal for housing lessee’s preemption. Controversy on the case ispart of the tenant of the building in the whole land will be for housing as a whole when enjoythe right of first refusal in the sale or auction houses, houses the lessor should be how toperform the notification obligations of the lessee, housing lessee’s preemption are violated,how to relief.The second part: case involves the basic theory and the focal point of dispute resolution.This part firstly expounds the concept and the property of the housing lessee’s preemption, theauthor thinks that housing tenant right of first refusal means during the period of the lease, thehousing the lessee in accordance with the law and enjoys the lessor (given in the judicialpractice, the ownership of the house with the lessor is one more, and the supreme people’scourt about town house lease contract dispute cases "the explanation of the concreteapplication of law in the word is used in the lessor, so for the convenience of discussion, in this paper, the lessor is the ownership of the house) to sell its rental housing, with a thirdperson to the right of prior to the third person and buy the same conditions. Properties abouthousing lessee’s preemption in academic circles, the author agrees with the contractingpriority right, said the theory in accordance with the rights and the nature of our current laws.Part at the same time the author thinks that building the lessee shall enjoy the right of firstrefusal when building overall transfer; The lessor shall be in agreement with a third personbefore20days to notify the lessee, the content of the notice should be specific betrayedhousing conditions; The lessor to the lessee to inform duty should be taken against the lesseepersonal right way. Violation housing lessee’s preemption of the relief measures mainlydamage compensation, its scope includes actual loss and can get profit loss, the author thinksthat in the case of violation of "contract law" article fifty-two can/overlap in the second partand the fourth part is to bring a suit in a people’s court for confirmation by the lessor and thethird signing the sale and purchase contract is invalid.The third part: the research conclusion to the case. In case verdict on this part of thearticle, pointed out our country housing lessee’s preemption system in the lack of legislation.Nature is the housing lessee’s preemption in the practice of the root causes of conflict;Legislation about home part of the lessee at the time of the housing overall transfer whether toenjoy the preferential buy right, for building droit to perform the obligation of notificationdeadline, way and content is not specific; At the same time,"contract law" the provisions ofthe two hundred and thirty rules is principle of the legal support for the infringement housingtenant right of first refusal behavior damages, but for the scope of compensation is notstipulated; And law of rule out the case of the lessee preemptions too mechanical, it isnecessary to perfect.The fourth part: the study of revelation to the case. This part Suggestions are put forwardaccording to the perfection of our country housing tenant right of first refusal. Such as clearhousing lessee’s preemption gives priority to the contracting of the nature of the right of claim;Clear when building the overall transfer of housing lessee’s preemption, the lessor to performthe obligation of notice period, way and content, and specify the ownership of the housing lessee’s preemption rules, etc. Last hope through the above measures to improve the housinglessee’s preemption related content, to better guide judicial practice.