An Analysis Of The Legal Effect Of Preemptive Right Of House Lessee

The system of preemptive right of house lessee is an important system in the relationship of housing lease,and its development has a long history.From the germination to the formation,then to the final legal text,the legislative evolution of the system reflects the change of the legal effect of this right from strengthening to weakening.Up to now,with the improvement of the housing market,the institutional value of this right has been questioned by the theoretical circles,when dealing with the disputes of preemptive right of house lessee,the judicial practice is confronted with the problem of how to balance the legislative intent of implementing the system of preemptive right of house lessee and protecting the interests of the third party,which leads to different judgments of the courts on the determination of legal effect.The nature of the preemptive right of house lessee determines the internal legal effect of the right,while the determination of the external legal effect determines the ultimate ownership of the house.In view of this,by sorting out the differences in judicial practice,based on the current legal provisions,combined with the relevant theory,and on the basis of clarifying the nature,this paper discusses the legal effect of the right from both internal and external aspects.Based on the analysis and analysis of the existing theories,it is more reasonable to define the nature of the preemptive right of the lessee as the right of formation.On the issue of the determination of the internal effect,the sale contract between the twoparties is established when the lessee’s intention to purchase the house under the same conditions arrives at the lessor on the basis of this nature.In order to enable the lessee to make a decision on the exercise of the right,the lessor shall perform the notification obligation in accordance with the law within a reasonable period after the signing of the sale contract,which is the terms of the established contract for sale.In determining the content of a sale contract based on the exercise of the right of preemptive right,the determination of the same conditions should not be carried out absolutely the same,but should be flexibly adjusted on this basis,that is,on the basis of price conditions,and when other conditions will obviously affect the interests of the lessor based on the sale contract with the third party,other trading conditions should be taken into account in a comprehensive manner to protect the interests of the parties.On the issue of the determination of the external effect,considering the institutional purpose of the legal preemptive right and the normative meaning of the text,it is mainly manifested in two aspects: one is that the exercise of the preemptive right of the house lessee does not affect the effectiveness of the sale contract between the other buyers and lessor.In cases where the lessee waives the right to preemptive purchase because the lessee cannot satisfy the same conditions in such a manner as to misstate the high price,the ostensibly overstated high-price trading clause shall be null and void as a result of conspiracy and hypocrisy.However,the actual transaction clause does not apply to the rule that malicious collusion is invalid,and at this time it does not satisfy the constituent elements of "harming the interests of the third party".When the lessor has not transferred ownership of the house to a third party,the lessee shall enjoy the right of priority,and its creditor’s rights shall take precedence over the third party;Second,when the lessor has transferred the ownership of the house to the third party,whether the lessee can exercise the preemptive right to exclude the third party’s final acquisition of the ownership of the house depends on the goodwill of the third party or not.The distinction between goodwill and malice of the third party should not draw lessons from the bona fide standard in the system of bona fide acquisition,and there is an essential difference between the two in the degree ofdefect in the disposition right.In addition,the lessee’s preemptive right or rental relationship does not require registration or possession as a public requirement,and the third party is not obligated to investigate it.Further,even if the third party is aware of the lease relationship or the lessee’s preemptive right,it can not be taken for granted that it is malicious.For the third party,the object of the duty of care is not the existence of the lessee’s preemptive right or the rental relationship of the house,but whether it knows and respects the exercise of that right by the obligee or not.At this point,the jurisprudence basis of recognizing that the lessee’s preemptive right can confront the malicious third party is that the behavior of the malicious third party deviates from the scope of free competition which is usually recognized,and violates the principle of good faith.