Study On Application Of Preemptive Right Of Lessee

Preemptive right is a civil right which has long history and rich connotation, detailed provisions related to this right can be found in almost all the countries. Early in the Tang and Song dynasties, it has emerged among real estate area like land transactions,in which the Preemptive right is the most important right related to our daily life. The Interpretation of the Supreme People’s Court has made an innovation to the regulation of Preemptive Right of Lessee, however, there are still some unclear and controversial issues, which will lead the prone bias and conflicts in the course of exercising the right and resolving disputes in a trail. As a consequence, not only will it go against with its institutional design sense, but also seriously damage the stability of society and the authority of justice. On the current legal provisions and practical point of view concerning the preemptive right, there are problems of qualitative, the explicit of component issues and the restriction of the exercise of right. By legal interpretation, case commentary, and other domestic regulations express the application of right, playing a pivotal role for Mediating dispute and the administration of justice. This article discussed the preemptive rights from the following four parts:The first part: Through the list of relevant laws and regulations and based on the provisions of The Interpretation of the Supreme People’s Court, this paper concludes the existing problems of the application of right which is unclear or controversial but essential in practice.The second part: To solve the problem of the nature of the preemptive right. Although The Interpretation of the Supreme People’s Court has denied the preemptive right can affect the validity of the contract between the leaser and the third party, but the nature of the preemptive right has not been clearly defined. Through the analyze of the structure of the preemptive right and relative doctrines, this paper define the preemptive right as Mandatory right of obligatory claim.The third part: To solve the definition of "reasonable period of time" and "equal conditions". Expect the blanket regulation in the "Contract Law", there is no provision about the component in The Interpretation of the Supreme People’s Court and other law,which is a big problem in the practice. By making detailed analysis on the requirements of exercise, combined with the referee perspective views of scholars at home and abroad as well as relevant laws and regulations on "sell", "reasonable period of time", "equal conditions", this paper clarify the period and conditions of exercising right which has practical significance.The fourth part: To solve the limit of the application of right. According to the Article 24 of The Interpretation of the Supreme People’s Court, the Preemptive Right of Lessee can not be used if there will be the Preemptive Right of the Co-owner or the property right of bona fides third party which still have some query. This paper with the basic legal and related cases clarify the relationship between Preemptive Right of Lessee and Preemptive Right of the Co-owner or the property right of bona fides third party in order to resolve substantive rights in conflict situations.