On The Protection Of The Lessee’s Preemptive Right

As an important policy,the protection of lessee’s rights and interests has been stipulated in the legal system of our country.However,due to the gradual decline of the legislative purpose and institutional interest during the changing times,and also the lack of clarity in the content of the legal provisions,there are considerable ambiguities in the application and understanding of article230 of the contract law in theory and practice.In particular,there are different opinions on the property of the right,the conditions of application,and the means of relief after the infringement of the right.Based on the application of lessee’s preemptive right in judicial practice,this paper attempts to sort out the right attribute and applicable conditions of the right,and proposes reasonable suggestions on the relief channels and the scope of damages after the lessee’s preemptive right is infringed based on practical cases.The first chapter of this thesis defines the right attribute of the lessee’s preemptive right as the forming right of the nature of creditor’s rights.The external effect of the right is limited in the creditor’s right to avoid the excessive protection of the lessee caused by the real right,while the internal effect of the right belongs to the right of formation,and it has the nature of invasion.The infringement of this right focuses on whether the seller’s “notification obligation” is properly performed.The second chapter combines the understanding of the lessee preemptive right structure with the cases of infringement of the preemptive right in the judicial practice,the infringement patterns of preemptive right are divided into two categories: The first is the situation that the lessor fails to properly perform the notice obligation,the second is the improper obstruction after the lessor performs the notice obligation,and then enumerates the specific types under the above classification.The third chapter summarizes the differences in the judicial practice of the lessee’s right of preemption damage compensation,which are mainly divided into three situation: “full compensation”,“discretionary compensation” and “no compensation” for the “house price difference” caused by the infringement of the right of the preemption.This thesis agrees with the reason of “no compensation” case.The house price difference is not foreseen when the lease contract is made and the lessee’s preemptive right is attached to the house lease contract,while the purpose of a house lease contract is to focus on the lessee’s use of the house rather than to obtain the lease object after the termination of the lease contract.Therefore it is questionable whether the“house price difference” can be regarded as the performing benefits.In addition,the calculation of damage compensation when the right of preemption is infringed should be determined through the investigation of the positive and negative losses in the form of the infringement of the lessee’s right of preemption.The fourth chapter,based on the infringement forms mentioned above,discusses the damage compensation scope of the lessee’s preemptive right under different infringement forms.This thesis argues that if the lessor fails to properly perform the notification obligation and causes the lessee’s right of preemption to be infringed,it will only compensate for the loss of the reliance interest in principle if the liability for fault in contract making and the liability for default in lease contract become concurrent.But if it is the infringement forms that the lessor performs the notification obligation properly,the contract has been formed as mentioned before,the performing benefits of the lease contract should be regarded as the standard of compensation scope at this time.Meanwhile,considering the decline influence of the system of the lessee’s preemptive right,this thesis put forward the concept of “limited compensation”,by comparing with the viewpoint of “no acquirable interest in pre-contract” formed by the pre-contract system,which is extremely similar with the lessee’s preemptive right and has much more clear system purpose,in judicial practice.This is corroborate with this thesis’ s viewpoint that the damage compensation scope of lessee’s preemptive right should be limited in reliance interest.