Comment On Article 725 Of The Civil Code(Change Of Ownership Does Not Break Leases)

The 725^tharticle of The Civil Code of the People’s Republic of China（hereinafter referred to as“Civil Code”）is the basic norm of.the principle of the change of ownership does not break lease.The specific substantive rules of the change of ownership does not break lease in the 725^tharticle are scattered in the Maritime Law of the People’s Republic of China（hereinafter referred to as“Maritime Law”）,Interpretation of Supreme People’s Court on Several Issues Concerning the Specific Application of Law in the Trial of Cases Involving Disputes over Contracts for Lease of Urban Houses（hereinafter referred to as“the Specific Application of cases Involving Disputes over Contracts for Lease of Urban Houses）”.At the level of substantive law,the dispute of the intention has a great impact on the scope of application of the principle.The legislative expression of“this shall not affect the validity of the lease contract”leads to the ambiguity of this principle.Despite it can be explained by,“contract status undertaking”mode,the other practical problems like rent payment,deposit return and so on,need to solved by the other principles in the Civil Code.At the level of procedural law,the abuse of the principle leads to the problem that the parties use false lease to resist execution.Effecting the principle,there are the rules in the procedural law that how to identify the lease relationship and how to decide that if eliminate the lease relationship from the object of execution..As substantive law,the Civil Code,it makes a link between substantive law and procedural through the fact of“possession”,which is a response of practice.Therefore it is necessary to explain the complete rule that the change of ownership does not break the lease after the promulgation of the Civil Code.There are five parts in this thesis.The first chapter is the introduction.This paper mainly introduces the controversial part under the principle and the practical significance and value of its explanation,and summarizes the current research of the principle.This chapter also introduces the research method,commentary.The principle is explained by two important ways of commentary,dogmatic of law and comparative law.The second chapter is the orientation of this norm,the 725^thof the Civil Code.Through the exploration of the legislative purpose of the principle,it is the justification of the principle that protecting the interests of the lessee,improving the economic benefits of the lease and maintaining the autonomy of the parties around the lease.At the same time,this chapter clarifies the differences of“lease contract”and“lease right”,which helps us accurately understanding the effect of the principle.Analyzing the topics,“obligatory right of real right”in Chinese law and"domination based on debt relationship"in German law,this part is trying to reveal the effort of the Civil Code to improve the principle through the fact of possession,which will provides theoretical support for understanding the legal significance of possessing the things according to the leasing contract.The third chapter is to introduce the constitutive requirements of the norm,the 725^tharticle of the Civil Code.Through the system interpretation of the Civil Code and relevant laws,there are the constitutive requirements that an effective lease contract,the lessees’possession of the leased property according to the lease contract,and the change of the ownership on the leased property.Firstly,Article 725 includes movable property and estate,based on the semantic interpretation of this norm and based on the fact that special law has similar rules on movable property.And the principle can’t be used while faked leasing and so on.Based on the theory that making a contract is a burden,the owner can take back the property under the situation that non-owner makes a contract on the property and so on.In the sublease,the chain of possession is complete for the lessor.The principle includes sublease.Secondly,the lessee under the fact of possession can exclude others’right.But it can’t exclude others’real right by registering the leasing contract.Thirdly,not only the legal action but also the legal fact can be included in the principle.In this chapter,the principle is explained that the specific content of the constitutive requirements of the principle by clarifying the judicial cases.The forth chapter is legal effect.The legal effect of the principle is explained by the system interpretation and historical interpretation.It is the common view that the legal effect of the principle is“contract status undertaking”.Under the this legal effect,the legal nexus is explained by referring to the related norms in comparative law and judicial cases.And the problems like rent payment,deposit return and so on,are settled by the system interpretation.Besides Maritime law and the Specific Application of cases Involving Disputes over Contracts for Lease of Urban Houses that are specifically point out the legal effect of specified property lease contract is“contract status undertaking”,the legal effect of other lease contract of unspecified property is lessee confrontation mode.And this mode also provides theoretical support for that lessee get protection according to the possession system of the Civil Code.The fifth part is the principle in the procedural law and burden of proof.Amount of rules about lease are in the procedural law,like lease contract on the property could be excluded and the obligee claim their right about the property in the execution.The result has a great impact on lessee’s right on the property.This is the part of the principle.The completed legal effect of the principle is explained in this chapter.The last part is the conclusion,summarizing the thesis,the orientation of the norm,constitutive requirements,completed legal effect of the principle in substantive law and procedural law.