Study On The Preemptive Right Of House Lessee

Preemption right is when the seller sells a specific subject matter, by law or contract, the right holder may give preference to the purchase of the rights of third persons.Different from the preemptive rights of co-owners, the shareholders preemptive rights, etc., the basic legal relationship of preemptive right of house lessee is rental relationship.Contract law gives the lessee for the preemption right, in order to protect the interests of the lessee.But for the exercise,effectiveness and damages compensation of the rights are not provided by law.For problems encountered in practice, judicial interpretation have made further improve,but the cases in practice,the judgment of different court are not the same,and there are different academic perspectives.The first part focuses on the nature of the lessee’s preemption right.The discussing of nature is a prerequisite of the other issues.Including the expectant right theory,the right of claim with compulsory contracting effect theory,the right of claim theory,and the right of formation theory.The expectant right theory considered that the lessee expectation rose to approach the expectant right is wrong.The scope compulsory contracting itself is narrow, and its effectiveness is not suitable for the case of the preemptive rights.The characteristics of the request right led to require the creation of a number of exceptions when explaining the preemptive right.Such as whether can be independently transferred,the nature of the period and so on.The right of claim theory is not in accordance with the characteristics of the preemptive right.This article believes that the right to use the right of formation to explain the nature of the preemptive right is most reasonable, the priority of the right can not be transferred independently, can not be attached to the conditions or terms of the contract, the parties can stipulate the exercise period of the right.These features have confirmed that it the right is a right of formation.The second part of this article focuses on the effectiveness of the preemption right.First, the effect of the contract,the exercise of the right will have what effect on the sale and purchase agreement between the lessor and the third person.This article believes that the exercise of the right of preemption of the lessee does not affect the validity of the contract of sale between the third and the lessor.The exercise of the right to establish a sales contract between the lessor and the lessee directly.On the validity of the preemption of the lessee, in other countries and regions have different legislative models,the key to the problem is:The source of the fighting force is the registration of property rights and the protection of special legislation,whether the right of preemption of lessee obtained against the force from this mode.There is no real rights registration system in china of this right and there is no special legislation protection.Therefore, there shall have no counter force to the right of preemption of the lessee in our country.The third part focuses on the exercised of preemption right of lessee.The law requires the lessor to sell the house as a precondition, that means the seller and the third people entered into a sales contract.The exercise of the right will form under the same conditions of the sale contract, The same conditions shall be determined according to the specific terms and conditions.The obligation of giving notice start from when the lessor sells the house. The lessor shall notify the lessee at once,the contents of the notice shall include the specific terms of the transaction.The exercise period of the right can be appointment and also have regulated by judicial interpretation.The fourth part of this article discusses the question of damages compensation of the right.Damages problem is directly facing in the practice, but practice have different approaches.The possibility of infringement of formation right is the most important question.Secondly, against the lessee preemptive right behavior have different types.The lessor does not perform the obligation of notification to the lessee can not exercise the right,the lessor or the third people impede the exercise of the rights of the lessee,After the lessor and the lessee form a business contract without authorization, the housing transfer to the third people.Different violations of the damage caused by the tenant is also different.The lessor does not fulfill the contract of sale will take the liabilities for breach of contract.The lessor fails to perform the obligation of notification will take the liabilities for breach of the lease contract.Third people against the lessee preemptive right possibly take tort liability.