The Essay On Execution Of Lessee’s Pre-emption Of Partial Renting

China’s economic growth and the expansion of urbanization yield much higher requirements on the quality and quantity of housing. Influential Factors, such as governmental control policy, industrial policy, governmental monopoly in housing primary market etc., give rise to serious contradictions between supply and demand. The year-by-year increasing housing price elevates the costs of property purchasing. House renting, as a part of the secondary market of real estate market, plays a pivotal role in the whole market. Important in house leasing law, leasee’s pre-exemption system (shorted as "the system") should have been given adequate emphasis. The simplified and less-principled regulations lead to common occurrence of legal disputes regarding leasee’s pre-exemption.Opened with a practical case, this essay will address the problem of leasee’s pre-exemption execution in commercial-housing’s partial renting with the focus on the "equal condition" of constitutive elements and the scope of leasee’s pre-exemption. Then, the author will come up with the solutions. It contains five parts as follow: The first sector will lead in a representative case analysis. By introducing a typical controversial case regarding leasee’s pre-exemption of partial renting, the author will directly propose following questions:1st what is "equal condition"?2nd what is the scope of leaseholder’s pre-exemption as leasers sale properties as a whole? Do leasees reserve the right of the whole property, of the part they rent or both of those?The second sector will review the value in leasee’s pre-exemption of partial renting system. The author will point out that the second question can be practical, controversial and discussable only when the commercial-housing’s lease-tenant relationships exist. In practice, the economic statuses of the parties involved in commercial renting relations are, basically, equal. The original mechanism, which protects leasee’s vulnerable position, can hardly offer effective guidance in the reality. It is of high necessity to re-annotate the value of the system. The author realizes that under a new environment this system needs to reduce transaction costs, to progress trades and to make more use of the properties. At the same time, the system should also maintain the value that encourages the constant use of commercial sites. This part also lays the foundation for the further argumentations in this passage.The third part is to discuss the problem of leasee’s pre-exemption of partial renting. Through comparing and analyzing different perspectives, the author is to elaborate on the constitutive elements and effects of leasee’s pre-exemption of partial renting and their respective connotations. In this part, the author will place his focus on analyzing and resolving the problem of "what is’equal condition?’" and promote the usage of comparatively equation while mentioning "equal condition". Moreover, it is also needed to set up an "equal condition" defining mode relied on "the identical on major terms in the contract+other substantially influenced factors"(stipulated by Article12in Contract Law) with reference to the "the identical terms+special circumstances" mode in Germany legislation.The fourth section will provide solutions and applicable principles. When purely logical and syllogistic deduction cannot produce execution, civil legal principle of fairness and analogy, oriented by the core value of the system, should be used to define the scope of the right. Analogy is used to stipulate the principles in normal sense. Meanwhile, the judge ought to make his own judgments on the scope of the right through considering the transaction will or not exert influences on the effective use of the housing, jeopardize leaser’s benefits and be conducive to leasee’s business. The last part will elaborate on the solution to the problem under the circumstance of the co-existence and competition of multi-leasee, which is a special circumstance of the second question posed above. The author classified it into two kinds, which are partial co-existence and holistic co-existence of the right. In terms of the partial one, those who advocates executing pre-exemption on the whole property may repel those who advocates the pre-exemption execution on their renting parts. Regarding the holistic one, the author proposes the usage of exclusion method, ratio method and statute of limitations as solutions. After examining their advantages and disadvantages, the author perceives that it is proper to make judgment on the priority of those leasees’ pre-exemption depending on the time span of the establishment of every leasee’s lease contract while employing the statute of limitations.