Several Legal Issues On The Preemptive Right Of House Lessee

Preemptive right of house lessee is one of the preemptive rights. The current laws and regulations in China in respect of preemptive right of House lessee are too general which causes controversies of legal issues in theory and practice. The discussion on systematic design of preemptive right of house lessee and relevant legal issues will be carried out in the following four parts.Part one is the brief introduction on preemptive right of house lessee which includes the definition, history, domestic and foreign prescriptions of preemptive right. The necessity of existence of preemptive right of lessee is discussed in the consideration of value. Lastly, the controversial nature of preemptive right is also analyzed in theory.Part two focuses on the question whether the preemptive right of lessee has the power to defend against the third party and what constitutes"the equal condition". As to the issue whether the preemptive right of lessee has the nature of debt or the nature of property which consequently can be used to defend against the third party, there is no unanimous opinion in both theory and practice. By comparison of different regulations, combined with the legislative consideration as well as the prescription of laws and the cases research in China, it is regarded that the preemptive right of lessee only has the nature of debt which can not be used to defend against the third party consequently. Secondly, the content of equal condition is discussed based on the distinction of various performance duties of obligors. Lastly, the nature of time limitation of preemptive right and when/how to start calculating are discussed.Part three probes into the coexistence of preemptive right of lessee with other rights, which is common in practice, including the coexistence of preemptive right of several co-owners and lessee and the conflict of co-tenants in performing the preemptive right. Then, issues regarding the legal obstacles for performing the preemptive right of lessee are analyzed, which include: (i) whether the preemptive right can be performed when mortgage is realized; (ii) whether the preemptive right can be performed during the auction; (iii) whether preemptive right can be performed during a low-priced transaction and transaction between relatives; (iv) whether roommates can perform preemptive right;(v) whether a sub-lessee has the preemptive right.Part four mainly analyzes whether the infringement on preemptive right will constitute tort and subsequently cause the corresponding legal consequences. First, it analyzes whether the failure to notify the lessee by the lessor of the transfer of the tenanted house will constitute tort. Then, tort liabilities of lessor are divided into certain types, according to whether the house title is transferred or not. Further, it analyzed whether sales contract can be reached by the judgment from the court and whether it constitutes tort if the lessor transfers the house to the third party after the lessee performs its preemptive right. Lastly, theoretical discussion on infringing the preemptive by the third party is carried out.Relevant legislations in Germany and Taiwan are discussed during the analysis of the thesis as the comparative research. Meanwhile, the thesis resorts to not only the theoretical research, but also legal prescriptions and cases in order to safely arrive at a reasonable opinion based on the comprehensive analysis.