On The Liability For Compensation For Infringing The Pre-emptive Right Of The Lessee

Article 230 of the Contract Law clearly stipulates that the lessee has the pre-emptive right:"If a lessor sells a leased house,he shall let the lessee know within a reasonable period of time before the sale,and the lessee shall have the right to prioritize purchase on equal terms." The lessee's pre-emptive right system is not limited to this,there are other provisions,such as "Interpretations of the Supreme People's Court on Several Issues About the Specific Application of the Law in the Trial of Disputes over Urban House Rental Contracts" Articles 21-24.However,due to the rough standards and the swaying views of legislators,there are many differences in the application of the pre-emptive right,especially the issue of relief when the pre-emptive right is violated,such as when the pre-emptive right is violated,what is the nature of the liability for damages that infringe the pre-emptive right,and what are the boundaries and calculation standards of damages liability?This article is divided into three chapters.The first chapter introduces a variety of viewpoints on the nature and scope of the liability for damages incurred by the current judicial practice for infringement of the pre-emptive right.The confusion of application and the inconsistency of the judgment results will inevitably lead to the ambiguity of the civil subject on the predictability of the law.Therefore,it is urgent to clarify the liability for damages for infringement of the pre-emptive rightThe second chapter mainly discusses the situation where the pre-emptive right is infringed.Firstly,the nature of the pre-emptive right is the right to form,and there is a possibility of being violated.Secondly,the pre-emptive right can be infringed only if the condition is met,that is,the pre-emptive right is generated and not destroyed.I have made a detailed analysis of the constituents of conditions where the pre-emptive right is generated.In addition,all types of houses are subject to the pre-emptive right,whether residential or commercial.According to the meaning of Article 24 of the Judicial Interpretation of the House Lease Contract,the pre-emptive right is infringed into two categories:the notified and the unnotified.Subdivide according to whether the registration of transfer is made without notification,and subdivide according to the subject of the violation in the case of notification.In the above-mentioned subdivided situations,only after the ownership of the leased house has been transferred and registered,can damage be caused and the discussion of compensation liability startThe third chapter clarifies the pre-requisites for the owner of the pre-emptive right to claim damages.In addition to meeting the condition that the damage exists,she/he also needs to be willing and able to buy the leased house.When the right of the lessee who is willing and able to buy a house is violated,the law is necessary for relief.After discussing the pre-requisites,the third party and the lessor shall be liable for damages in the event that the pre-emptive right is not able to exercise;when the pre-emptive right is exercised by the lessees,the lessors shall take liability of damages for breach of contract.Under the liability for tort damages,the pre-emptive right was included in the scope of tort law protection through intentional perverse torts.At the same time,in the establishment of tort liability,the subjective intentional requirements for third parties and lessors make a difference.In the range of the liability for tort damages,through the classification of different damage items into positive damages and lost benefits,the possibility of damages such as house spreads,fixed decoration residual value,and expenses due to pre-emption disputes are discussed separately.Under the liability for damages caused by the breach of contract,if the parties of the sale contract have a special agreement on this,the agreement shall prevail.If there is no agreement,the lessor shall compensate the lessee to the state as it was when the contract was performedAt last,I discuss the calculation method of the liability for infringement of the pre-emptive right.There are subjective/objective calculation methods and concrete/abstract calculation methods for calculating damages.Different calculation methods have different applicable conditions,and the amount of damages obtained is also different Specific to the damage compensation calculation of the pre-emptive right,a calculation method combining subjectivity and objectivity should be adopted.The calculation time is the time when the damage occurred,that is,the time when the tort or breach occurred If the lessee exercises the pre-emptive right,the breach occurs when the lessor transfers the ownership of the leased house to another person.If the lessee doesn't have the opportunity to exercise the pre-emptive right,it is also the time when the damage occurs when the lessor transfers the ownership of the house.