The Study On The Protection Of Tenant Preemptive Right

The tenant preemptive right is an important branch of preemptive right system, belonging to policy norm, which is established for the purpose of protecting the tenant habitation. In order to understand the current situation about the affirmation, exercise and protection of the tenant preemptive right, studying two classic cases and lots of Written orders of second instance, I realize that: Firstly, since the <judicial interpretation on the house lease contract> put into force, the tenant preemptive right have just become creditor’s right, which means it can’t against a third party, it is normally that the tenant preemptive right is aggrieved, and the center of the system of tenant preemptive right has transferred from the protection on itself to the protection upon the right relief. Secondly, the tenant preemptive right exists a contradiction. On the one hand, the tenant preemptive right expands. Appointed preemptive right is accepted in judicial practice, and the tenant preemptive also suitable for the commercial buildings; on the other hand, the tenant preemptive right is impracticable; the infringement of the tenant preemptive right is normalcy. Thirdly, the tenant preemptive right being aggrieved, and on deciding the damage compensation, different courts are based on different standards, namely rent and housing price difference loss. Fourthly,the tenant has misconception when requests the exercise and protection of the tenant preemptive right, and his claims are seriously baseless. The tenant always claims the contract between leaser and a third party is invalid. Fifthly, the courts do not make good use of interpretation right, dealing with the dispute upon the tenant preemptive right incomplete, leading to one thing making two lawsuits, which makes the parties tired and causes the waste of judicial resources.Based on the problems existing in the right of the tenant preemptive right, this paper discusses the protection of the tenant preemptive right from two aspects. For one thing, setting up and building the tenant preemptive right establishment and exercising elements system, standardizing the tenant preemptive from the aspects of exercise the rights; Second, when the tenant preemptive right are infringed, how to realize the relief of the tenant preemptive right, and put forward reasonable Suggestions for relief.This paper summarizes the conditions of the tenant preemptive right into five aspects. Namely, legal and valid housing lease basic relationship is the establishment elements of the tenant preemptive right. The leaser selling the rental house to the third person; the equivalent conditions and exercising in reasonable time are the positively exercising conditions. No existence of limiting conditions is the negatively exercising condition. The judicial interpretation stipulates that the leaser who aggrieves the tenant preemptive right should liable for damages. Through comparative analysis on the responsibility for branch of contract, the liability for tort and other viewpoints, the damage compensation liability of the leaser ought to be the responsibility of breach of contract. The scope of damage compensation includes both direct losses and indirect losses. The standards of damage compensation because of aggrieving the tenant preemptive right should be housing price difference. The rent can’t represent the the loss of tenant. As to the decoration fee, it depends on the different cases. Finally, protecting the tenant preemptive right, this paper puts forward three Suggestions: Firstly, appointing the damage compensation of aggravating the tenant preemptive right in the house-leasing contract. Secondly, the lessee should carefully request the courts to affirm the contract between the leaser and the third person invalid. Thirdly the judges shall reasonably use interpretation right in order to efficiently solve the disputes on tenant preemptive right.