Research On The Compensation For Damages Of Tenant's Right Of First Refusal

The first refusal system is a legal system that is universally recognized and established in the world.The tenant's right of first refusal is one of the first refusal,which means that the lessee has the right to preempt under the same conditions when the lessor sells the rental.The formal confirmation of the system at the legal level of our country was in the Contract Law promulgated in 1999.Although the priority purchase right system of our country has been established for a long time,the relief of the right has not been clearly stipulated.So far,the tenant's priority purchase rights system is mainly seen in the "Contract Law" and "Housing lease contract",the latter one provides the right relief of damage compensation,fill the blank of right protection,but it did not make more detailed provisions for the base of right of the request of damage compensation.Further more,although the preemption system has come to the present for almost half a century,there is still no conclusive conclusion on the legal nature of the right,the way of exercising,the methods of protection in academic theory and judicial practice.The lag of the theory and the blank and fuzzy of legislation caused different understanding for the nature of right,the standard of compensation,the scope of compensation when dealt with the tenant priority purchase rights dispute cases in the judicial practice,which leads to the situation that similar cases in different courts of the trial results are very different,which greatly affected the authority of the law.This paper is divided into four parts.The first part is mainly discuss whether the tenant's right of first refusal could be infringed or not.As the existenceof different answer to this question,the author firstly analyze the nature of tenant's preemptive right,on the basis of analysis of different studies,finally draw a conclusion that the right is right of formation.Further more,even tenant's preemptive right is right of formation,it could be infringed.The second part is the performance of infringement of tenant's preemptive right.The author further submits the specific circumstances of the infringement of the lessee's right of first refusal,that is,the lessor or the third party is unreasonably obstructed in the process of exercising the right of first refusal by the lessee or the lessor violates the obligation of notice and eventually leads the lessee can not achieve the purpose of preemptive right.The third part is the analysis of the basis of the claim for the the compensation for damages of lessee's preemptive right.The author holds that the existing theoretical doctrine is reasonable in addition to the theory of “independent responsibility”,but the other doctrines are not comprehensive.According to the effectiveness of the lessor's right of first refusal,this paper analyzes the different external effects of the right,and on this basis,the author analyzed the different basis of right of request in different circumstances.The fourth part is the analysis of the scope of compensation for the liability of the lessor,which made clear the different scope of compensation the lessor should bear in different circumstance.