On The Preemptive Right Of House Lessee To Purchase

Preemptive right is an important right in daily life,It has a long history,rich connotations and theoretical interests.Many countries in the world have rules for them.Common preemptive rights generally include Co-owner's right of first refusal,tenant's right of first refusal,and right of first refusal in commercial law.The most commonly used in practice is the lessee's right of first refusal.The lessee's right of first refusal refers to the right that a specific person enjoys according to the law or agreement,and when the seller sells the subject matter to a third party,it can be purchased in the same condition with priority over the third person.The provisions of the Chinese law on the lessee's right of first refusal are found in the “Mintong Opinions”,the “Contract Law” and the “House Lease Interpretation”.Despite the explicit provisions of the law,there is still considerable controversy over the current application of the lessee's right of first refusal in practice.The disputes and conflicts between the lessor,the lessee and the third party continue to emerge one after another.Reflected in the trial,the phenomenon of different judgments in the same case seriously affected the legitimate interests of the parties and the authority of the judiciary.In the author's opinion,it is the principle of the system that leads to the deviation of understanding between the parties and the court regarding the right of preemption.Therefore,there are still many issues that need to be clarified in the academic and practical circles regarding this system.Specifically,the current tenant's right of first refusal remains to be clarified in terms of the nature of rights,the effectiveness of confrontation,and the basis of claims,which is also the direction of this article.This article proposes to explain the priority purchase right in four parts:The first part is an overview,which mainly addresses the issue of the qualitative issues and rights of the lessee's right of first refusal.As for the statute of the lessee'sright of first refusal,by reviewing other doctrines about the nature of the right and summarizing the merits of each doctrine,this paper concludes that the tenant's right of first refusal should belong to the right of formation.Once the nature of a right is clear,it naturally takes into account its power.This article believes that the right of first refusal generally only has the effect of creditor's rights and can only take place in the rights and obligations between the right holder and the assignor.However,supplemented by the registration system,the power of the preemptive right can be expanded,even if it has the counter power,which can more equitably balance the interest distribution between the parties,so as to better achieve the purpose of the preemptive right system.The second part discusses the exercise of the tenant's right of first refusal.Including the requirements for the exercise of the main body,the act of transfer,the same conditions,and the lack of defense of a total of four elements.The main body of the exercise includes the principal position that the main body of the law stipulates and the parties themselves agree on the right of preemption.The transfer between the third party and the lessor should be paid and established.The determination that the core conditions in the exercising conditions of the lessee's preemptive right system are the same.This article mainly elaborates on the price clause.After the first three elements have been met,the exercise of rights also requires no defense,including the absence of continuing obstacles and the absence of obstacles to exercise.The third part is the three performances of infringing the preemptive right.Including that the lessee was not informed within a reasonable period of time,the lessor unilaterally prevented the lessee from exercising his rights,and the third party hindered the exercise of the lessee's rights.The fourth part explains the basis of the claim for damages.First,three basic theories of claims are introduced.Then combine the third part of the infringement performance with the effectiveness of the rights in the first part,and determine the claimant's claim basis for damage compensation under different circumstances.