Study On Reserving Or Abolishing The System Of Preemptive Rights Enjoyed By Lessees Of Houses

Preemptive right enjoyed by lessees of houses is one kind of preemptive rights, it refers that, within the valid lease term, the lessee has the preemptive right to purchase the leased house under the same condition if the lesser wants to sell it according to the law. The system of preemptive rights enjoyed by lessees is the product of certain historical conditions, which has obvious particularity of times. Through limiting leaser’s right on selling leased house, it protects the rights and interests of social vulnerable groups, and therefore realizes the substantial concepts of fairness and justice. Within certain period, the system played an important part in improving housing problems and maintaining social stability.The system has exposed some flaws with the development and advancing of times and changing of social economic conditions. Some people think that the system may be perfected by amending the legislation, and then continually plays its role in respect of legislative value. On the contrary, some people think the system does not have any economic and social value, and argue that the system should be abolished.In respect of the said two views in theoretical and practical fields, it is necessary for us to take a new look at the domestic provisions of law on the system. The main provisions on the system is provided in 230 article of the Contract Law which states that “ if the leaser sells the leased house, he should notify the lessee within reasonable period before, and the lessee has the preemptive rights under the same conditions.” This article does state the specific contents of “selling”, “reasonable period” or “the same conditions”. It is very difficult to put into practice not only for its vagueness and principle nature, but also for the contradiction existed in rights limitation and civil laws’ principles. Exercising the right according to the provisions of law may damage both party’s rights and interests. Because the system violates the principles of equality, fairness and voluntariness, it shows as a special right. In practical fields, the disputes always arise because of lessee’s preemptive rights during the process of houses selling. In legal practices, the cases involving the disputes of this system have aroused much attention. It has become a difficult problem in judicial trials for how to understand and apply the relevant provisions.This paper explores the changes of this system starting from the definition and characters of the system. Through investigating and analyzing foreign legislation, we found that the preemptive rights have been adopted by many civil law countries, but establishing the lessee’s preemptive rights of buying leased houses is not internationally-accepted practice. This article mainly makes full and detailed description and analyses on the establishing of the system, problems existed in the legislative provisions, contradictions between the preemptive rights and other rights, necessary and legal values of the said preemptive rights and flaws of the system.The author thinks that, specific provisions on the system in our country’s law are quite superficial, and it is hard to put into practices, so there is deviation in respect of the understanding of the system. And practical problems exposed more and more, the trial criteria is not unified, which injures the justice and party’s legal rights and interests. In modern society, the system has lost its value of existence, because it protects the lessee’s rights and interests through sacrificing both the third party’s and lessee’s rights and interests, and limiting the owner’s disposal freedom. The existence of this system has been opposed to its legal original intention, and its functions have become more and more limited. Therefore, the author thinks that we should abolish the system of lessee’s preemptive rights, so as to conform to the present social development.