Research On Pre-emptive Right

Generally，the meaning of pre-emptive right in law is that by convention or law，Whenthe owner sold the subject property particular person have the priority on Purchasingaccording the same conditions.In this paper，“the particular person”is “lessee”.Only thehousing lessee enjoys the pre-emptive right in law in the Chinese civil law，and the legal basisfor the "contract law" article230.The interpretations of “Judicial interpretation(2009)11”,announced on July30,2009, and effective as of September1by the people’s supremecourt, aiming at the problems of the judicial interpretation in the judicial practice,played acalm effect to this system to be the perfect and the conflict in a certain extent.However,due tothe relatively weak research on basic theory of the pre-emptive right of the lessee and thelegislation is not perfect, lead to difficult to achieve the purpose of the system, alsoin order tosolve disputes is not easy.Therefore, this paper is in this context, hope in-system,in-depthresearch architecture on the basis of sorting out the lessee pre-emption rights system of trainof thought, can be useful for future legislation and the judicial.In this paper, except the introduction and conclusion, is divided into four parts:First of all, to build the perfect lessee’s pre-emptive right legal system must address theissue of the qualitaty of the right.On the legal nature of the lessee ’s pre-emptive right, thereare a lot of controversy in the academic field. So far, The main views including the theory ofcontingent right,property right, creditor’s right,formation right and claims right and soon.Based on the analysis of information on comparative law, I believe that In mainlandChina, lessee’s pre-emptive right is one of formation of the right belongs to creditor’sright,rather than a contingent right.Secondly, in the civil law system, lessee’s pre-emptiveright legal system eflects the legislators’value choice between autonomy and fairefficiency.This legal system is a heritage of our country’s tradition legislation culture，alsosuit to the requirements of the society reality as well as the legislation policy"homeownership"."buying and selling is not break lease" can not replace it.What’s more, lessee’spre-emptive right was established when the lease contract is formed, as an attached to thelegal rights of the leasing contract，the exclusion or limitation to be effective，by both agreedor unilaterally intention of the lessee.The person who exercise lessee’s pre-emptive right do not include commercial lessee, and the lessee shall include the lessee lease part of house，apartment，conditionally expand to the whole.Conditions of exercise the right includes threeaspects:the seller fulfill his/her obligation to notify the The fact of on sell， the lessor betrayrental housingand the lessee intente to buy it at the"equal terms"；exercise period shall draw lessonsfrom the Macao civil law in a shorter period.The effectiveness of lessee’s pre-emptive right Inexercise judicial explanations for lease dispute，attitude of the judge has undergone a greatchange——no longer support to confirm the seller business contract with a third person isinvalid request. Finally, lessee’s pre-emptive right can be infringed,the responsibility belongto tort, breach of contract or contracting negligence should distinguish between differentscenarios to distinguish to treat.The author analyses the possible existence of reality basing onthe owner whether to perform the notify obligation as a standard,makes the legal relationshipfor the protection of lessee’s pre-emptive right clearer,and expounds the three kinds of legalliability of the scope of damage compensation.