An Analysis Of The Exertion And Restriction Of Preemptive Right Of Lessee

The development of the lessee's preemption system has a long history.At the beginning of the reform in 20th,in order to meet the demand for basic living needs of the people,preemptive right of lessee has become more and more popular.Article 230 of the Contraci Law expressly recognizes the preemptive right of lessee.The Supreme Court Interpretation of the Circular[2009]No.11 is a major innovation in the preemptive right of lessee.However,the existing provisions of the preemptive right of lessee are still controversial in the course of application,the nature of the preemptive right,the elements of the exercise and various restrictions in the exercise of the right.The solution of the above problems is not only conducive to the reunification of judicial practice,but also protective of different judgments from the similar cases.This article will discuss preemptive right of lessee from three parts:The first part analyzes the legitimacy basis of the preemptive right of lessee,and solves the problem whether preemptive right of lessee has to exist.There are many scholars who advocate the abolition of the preemptive right of lessee.First,the system meets the basic value pursuit of order and fairness efficiency,which is beneficial to the balance of interests between the lessee and the lessor.Moreover,the nature of the lessee's pre-emptive rights is the basis for the realization of this right.Current research on the nature of preemptive right contends the right of expectation,the right to obtain property and the right to claim.The article agrees that the preemptive right of lessee conforms to the basic connotation and the right structure of the compulsory claim right,and is also beneficial to the lessee's right to exercise.The second part deals with the problem of how to exercise the preemptive right of lessee.First,a legally valid lease contract is the basis for the lessee to exercise the right.Second,the lessor selling the rental house cannot hinder fair competition and market pricing.The lessees cannot exercise their preemptive rights in Civil bestowal,inheritance and government expropriation.In addition,the preemptive right of lessee is subject to the "same conditions",including the terms of the price,the manner of performance and the period of performance.The determination of the same conditions shall not prejudice the interests of the lessor and be flexible with the specific case.Finally,the exercise period of the preemptive right can draw on the experience of foreign legislation,the period usually begins when the seller notice the lessee and the longest exercise period stipulates the priority purchase right when the seller does not fulfill the notice obligation.The third part mainly deals with the restrictions on the exercise of preemptive right of lessee,mainly including the conflict of rights and the question of the rights between the lessee and the sub-lessee and the co-owner.The article agrees that the lessee and the sub-lessee are entitled to the preemptive right,but the sub-lessee's rights take precedence over the lessee's.what is more,the co-owner's right take precedence over the lessee.