The Research On The Damage Compensation Of The Lessee’s Preemptive Right

At present,only the laws of China and Germany stipulate the preemptive right system,while the preemptive right of the lessee in the mainland of China refers to the preemptive right of the lessee of the house.,which means that when the lessor sells the leased house,under the same conditions,the law grants the lessee claims the right to purchase before the third party.At the beginning of the founding of New China,due to lack of housing resources,the tenant’s preemptive right system mainly played a role in protecting the interests of vulnerable tenants.In today’s developed real estate market,the tenant’s preemptive right system is used to stabilize the use of houses relationships and improve transaction efficiency.Although the lessee ’s preemptive right has been established in China for a long time,only a few pieces of law have relevant provisions on this,and most of them are provisions for power confirmation,but there are few provisions on rights relief,which are only general provisions.In addition,the lessor can be requested to bear damages,and there is no regulation as to the nature and scope of the liability.This article will discuss in detail a series of related issues concerning the compensation for the lessee ’s priority purchase right based on the analysis of some judicial cases and related theories in the legal field.In addition to the introduction and conclusion,this article is divided into five parts:In the first part,it raises the question.Some judicial cases lead to the issues that this article will discuss.Because the law’s provisions on the lessee’s priority purchase right system are too general,many courts in judicial practice have different opinions when adjudicating related cases,whether it is the main body of claims for damages,or about the determination of the nature of liability and the scope of compensation,different courts have different views,which ultimately lead to very different judgments in the case.In the second part,it is proposed that the lessee’s right of first refusal is the object of tort.First of all,regarding its nature,there are mainly the theory of forming power,the claiming power and the expecting power in China’s jurisprudence.This article defines this as the power of forming.Since many scholars believe that the right of formation is a means of right and does not have the possibility of being infringed,it is claimed that the lessee’s right of first refusal to purchase is not a right of formation,but this article believes that even the right of formation can be the object of tort.In the third part,it is exploring the subject of the claim for damages.Life is rich and colorful,and the specific types of tenants are also diverse.This paper through combing judicial cases and scholars’ views,proposes sub-tenants,tenants who rent certain houses that meet certain conditions,and subjects who live together with the tenant during their lifetime.They also have the right to purchase first.When the rights of these subjects are violated,they can obtain relief by requesting compensation.In the fourth part,it mainly discusses the basis of claim for damage compensation.First,it analyzes that the lessor has not fulfilled its notification obligation,the lessor has prevented the lessee from exercising the right of first refusal,and the purpose of the lessee’s right has been defeated.These three actions ultimately lead to the lessee’s inability to exercise rights or the inability to achieve their goals,all of which constitute an infringement of the lessee’s preemptive right to purchase;and on this basis,under different behavior types,the basis of the right of request available to the lessee is different.In the fifth part,it analyzes the scope of damage compensation.It explores the scope of damages that lessor should be borne under different types of liability.If the lessee chooses the lessor to bear tort liability,who can obtain compensation for direct losses and indirect losses by proving its purchase intention and ability;If the lessee choose the lessor to bear the fault of contracting,who can get compensation for the loss of trust;for compensation under breach of contract,if the lessor violates the lease contract,the lessee can only get compensation for the actual loss,if the purpose of the lessee is not fulfilled after the exercise of the rights of the lessee,at this time the lessor violates the sales contract,and the lessee can be compensated for the actual loss and expected loss of interest.