A Study On The Right Of First Refusal Of Housing Tenants

In China,there are many types of pre-emption rights,but the most influential and most involved case is the pre-emption right of housing tenants.This right has great value in stabilizing the rental relationship and protecting the interests of tenants.With the increasing maturity of the housing transaction market,this right hinders the further development of housing transactions to some extent,so the effectiveness of the preemptive right of housing tenants is weakened in legislation.The direct consequence of the weakening is that the pre-purchase right cannot have the effect of confrontation,and the first-purchase right holder can only claim liability for damages.The "Civil Code" deletes the original "Fa Shi [2009] No.11" Article 24 Item 4 "The first right holder shall not fight against bona fide third parties to obtain the house",leaving it for the enhancement of the tenant's right of first refusal.Explaining space.To achieve the effectiveness of this confrontation,it is necessary to clarify the nature of the tenant's right of first refusal,the requirements for exercise,the restrictions on the exercise of rights,and the inconsistent understanding of the legal provisions.This article will discuss the above issues in four parts.The first part sorts out the historical evolution and legislative changes of the preemptive right of housing tenants,and sums up the problems existing in the current preemptive right system.The second part clarifies the nature of the first purchase right of the house tenant.The legislation does not specify the nature of the first purchase right of the tenant.From the perspective of rights,the pre-purchase right is based on the legally existing leased debt.It is a right derived from the lease relationship.If the lease relationship has not been established or has been eliminated,the right of first purchase will no longer exist.Therefore,the right is a claim of the nature of claims.The third part mainly solves the problems of the requirements and restrictions on the exercise of the right of first purchase by the tenant.The subject of the exercise of the pre-purchase right is only the tenant of the house,excluding the sub-tenant.The "reasonable time limit" for the exercise of the pre-purchase right is understood to be after the seller and the third party conclude a contract to before the actual performance of the contract between the buyer and the seller.The "equal conditions" adopts a compromise view,that is,the price is exactly the same and the price should be determined by the highest bid of the lessee and the third party.The price conditions should be determined by the one-off settlement method as the specific measurement standard.The restriction on the exercise of the right of first purchase by the lessee mainly involves the competition and cooperation of this right with other rights and whether it can be agreed to exclude this right.The issue of right co-opetition is a wrong interpretation of the law,and in fact no co-opetition relationship has occurred.The waiver of the pre-purchase right in an agreed manner is inconsistent with the definition of sanctions,and the sanctions require certainty of the object of the sanction.The fourth part is to first understand the antagonistic effect of the housing tenant's pre-purchase right from the perspective of the negative interpretation of Article 24 Item 4 of "Fa Shi [2009] No.11".That is,regardless of whether the third party is in good faith or not,as long as the third party has not gone through the transfer registration,the lessee with the right of first purchase can oppose the third party.This means that the order of performance of the sales contract between the pre-caller and the lessor may be superior to the sales contract concluded between the third party and the lessor.The sales contract concluded by the pre-caller based on the pre-call right has priority,but This is inconsistent with the characteristics of priority of claims.In addition,from the perspective of malicious collusion,there are strict restrictions on whether the pre-purchaser can resist malicious third parties,which is difficult to apply in reality.Therefore,other paths need to be explored,such as the application of the creditor's right of cancellation,the housing lease registration system,and the advance notice registration system.