Study On The Preferential Right To Rent From The Perspective Of Shop Leasing

In the business leasing relationship,the lessee is in a relatively weak position.This is mainly caused by the particularity of the shop lease.In the shop lease,the shop will realize appreciation through the operation of the lessee.It is these value-added benefits that make the lessee's right to renew the lease become fragile,because a prosperous shop will attract competition from a third party,or even be directly recovered by the lessor.If we do not give priority to protect the lessee's lease renewal,it will not only cause the lessee to suffer losses,but also,more importantly,will hit the lessee's enthusiasm to invest in business activities,thus affecting the stability of the economic order.In order to protect the interests of the shop lessee,it is also when the preferential right to rent is included in the civil code(draft),this paper discusses the rationality of the preferential right to rent system and the construction of the system in combination with the relevant legislation at home and abroad.This paper consists of the following five parts:The first part introduces the disputes about the renewal of business rent in judicial practiceIn the judicial practice of our country,there are many disputes about the right of priority in the leasing relationship of shops.Since the right of priority is not stipulated in the law of our country,the judge can only regard it as an agreed right,which greatly weakens the role of protecting the interests of the lessee.At the same time,due to the lack of provisions in China's laws,the lessee without legal guidance will lose his rights due to various factors even if he wants to protect himself by means of the agreement on the right of first lease.The two cases in this part fully illustrate this point to us.The second part is the basic theory of the shop lessee's right of priority.The right of prior lease enables the lessee to fight against the third party under the same conditions,so that the lessee can continue to lease the lease item,which to a certain extent shows the right of prior lease against the world,but this kind of right to the world is conditional and limited,is not an absolute property right,its nature is a property right of the creditor.The business asset theory of French commercial law holds that the business operation of a shop requires tangible elements such as commodities,raw materials and production equipment,and intangible elements such as trademarks,patents,brand effects and trade secrets.The overall value of these elements is far greater than the value of each element separately and simply combined,which is the business asset.Protecting the lessee's business assets is the primary purpose of establishing the right of first refusal.In addition,the institutional arrangement of preferential lease right can not only strengthen the protection of the business assets and management rights of the relatively weak lessee,but also play an important role in stabilizing the economic order and giving play to the economic efficiency,which reflects the justice,order and benefit value of the law.The third part is the introduction of the extraterritorial legislation to protect the interests of the business lessee.France,the United Kingdom and Japan have adopted lesser-centered legislation system in the system of renewal of rent,which provides inclined protection for the lessees in a weak position through legal means.These advanced legislation from outside the region all provide a good model for the construction of the preferential lease right system in China,so that we can make more scientific and reasonable institutional arrangements.The fourth part is the inheritance and present situation of the system of the preferential right of the charterer.Whether it ever existed in our country to lay a foundation in the history of the right,the preemptive right of our existing laws or regulations and rules of business not to break the lease,reflect the our country law to protect the interests of the lessee,through analysis and research on them,can the system design of priority right of tenant is more close to the social practice of our country.At the same time,some local laws and regulations or government regulations in China,such as zhengzhou,xiamen,zhejiang and other places,have carried out a beneficial exploration on the priority of lease right.Although these provisions are generally vague,their innovative spirit in legislation is still worthy of recognition.The fifth part is the author's th oughts and Suggestions on the establishment of the preferential lease right system of China's shop lessee.Based on the analysis of commercial operation activities and the agreement on lease term in the commercial practice of China,the author believes that if the lessee wants to obtain the right of first lease,the leasing relationship of the shop should be maintained for at least three years.In addition,in reality,there are a lot of leasors see shops run hot,and then take back the self-run,completely regardless of the tenant's interests of the case.In the face of this situation,the author suggests that we can refer to the"competition restriction" clause in the labor contract law of China,which stipulates that the lessor shall not engage in the same type of business activities as the original lessee within a certain period of time after the lessor takes back the shop.In this section,the author respectively from the applicable condition,a period for exercising,the effectiveness of the "priority",eliminate bear hire authority to apply justifiable reasons,the preference when tenant right infringement law relief as well as the allocation of onus probandi shops on six aspects to our country the lessee priority and provides advice on constructing tenant right system,for everybody to discuss.