Research On Tenant’s Preemptive Right System

Although the existing legal system of our country stipulates the preemptive right enjoyed by the lessee,the specific problems encountered in the process of exercising the preemptive right of the lessee,the compensation for infringement of the preemptive right of the lessee and the relief measures that the lessee can take are not further stipulated,which makes the academic circles not reach a consensus on this,and the phenomenon of different judgments in the same case also appears in the judicial trial.Based on this,this paper is divided into five parts on the basis of the existing research results,and further discusses the relevant issues in the exercise of the lessee’s preemptive right,with a view to improving the relevant system construction.The first part discusses the legal nature and theory of the lessee’s preemptive right.There has been a long-standing controversy in the field of the characterization of the lessee’s preemptive right.After comparing the characteristics of related types of rights such as formation right and claim right,it is redefined to give it the corresponding legal effect.By discussing the system value of the preemptive right,denying the view of abolishing the preemptive right and affirming the necessity of its existence.The second part is the exercise of the lessee’s preemptive right.This paper discusses the related problems in the lessee’s exercise of the preemptive right.Having determined the starting point of the lessor’s behavior of selling the house,it is believed that when the lessor and the third party reach an agreement on the terms of sale of the house,the starting time for the lessor tosell the house will result in the lessor’s notification obligation to notify the lessee of its intention to sell the house.The seller’s way of selling the house:paying debts with the house,investing in the house and auctioning by the court are all forms of selling the house by the lessor,and the lessee can claim to exercise the preemptive right.This paper makes a concrete analysis of "equal conditions" and determines that the housing price is the main consideration for installment payment and related conditions in conditional purchase and sale,and determines the " relatively equal theory" of talents with equal conditions when the lessee exercises the preemptive right.In order to safeguard the related interests of the lessor and the third party and to maintain a stable trading order,the preemptive right enjoyed by the lessee needs to be exercised within a certain period of time,not indefinitely.The third part is the conflict and resolution between the lessee’s preemptive right and other related rights.In the case of legal sublease of the house,both the lessee and the sub-lessee claim to exercise the preemptive right,because the sub-lessee actually occupies and uses the house,and the sub-lessee exercises the preemptive right to acquire the ownership of the house,which is more in line with the legislative purpose of the preemptive right.If there are several tenants in the same house,they should be settled by the tenants through negotiation.If negotiation fails,the principle of bidding will be adopted and the highest price will be obtained,which not only conforms to the trading habits but also balances the conflicts between the parties.When the house is mortgaged,the value pursued by the mortgage right is the realization of the secured creditor’s rights without transferring possession,the creditor is more concerned about the exchange value of the house,and the lessee is more concerned about the use value of the housewhen exercising the preemptive right.The two systems have different values,so the lessee can still exercise the preemptive right in the case of the house being mortgaged.If there are co-owners in the house,the co-owners are also owners of the house and have a closer relationship with the formation of the house.At this time,the lessee will not be able to exercise the preemptive right to acquire the ownership of the house.The fourth part is the infringement of the lessee’s preemptive right and compensation for damages.If the lessor fails to perform its obligation of notification and the price is fraudulent,the lessor will still sell the house to a third party and register the change of property right after the lessee notifies the lessor to exercise the preemptive right,all these actions by the lessor infringe upon the preemptive right enjoyed by the lessee.After the lessee’s preemptive right is infringed,it can sue to the court to request the lessor to bear the corresponding liability for damages,and it is more beneficial for the lessee to sue for breach of contract.According to the difference of the lessor’s breach of contract,the extent to which the lessor should pay damages to the lessee is specifically determined.The fifth part is the perfect suggestion of the lessee’s preemptive right.The system value of the lessee’s preemptive right is to ensure that the lessee can acquire the ownership of the house by preempting the house under the same conditions.The realization of the system needs to start from the following aspects: giving the lessee the effect of directly purchasing the house sold by the lessor,and the court can directly determine that the lessee and the lessor establish a house purchase and sale contract to ensure that the lessee can exercise the preemptive right to acquire the ownership of the house;In the case of several housing sales contracts,the lessee shall be guaranteed thepriority of performance of the contract signed by the lessee,and may be given the right to request the court to revoke the lessor’s transfer of the house so as to return the house to the state of not being sold.While guaranteeing the realization of the lessee’s preemptive right,it should also take into account the interests of the lessor and the third party,and prohibit the lessee from simply revoking the lessor’s transfer of the house and not buying the house,as well as the lessee’s estoppel.In order to protect the interests of bona fide third parties,the lessee may directly pay the purchase money to the third party.