The Research On The Pre-emptive Right Of Iessee Of Lodge

Housing tenant pre-emption system is the civil legal system in a special statutory right of priority. For that system, the judiciary has always been controversial for its research and have not stopped. While China's contract law and other laws and regulations also provides for the right of priority, but because of the current legislation is too simple and rough, and the system itself there are many problems, so the operation of the system process, a variety of problem after another, to make this system to supplement and improve the look more conspicuous.Historical origins of pre-emption system, the lessee is quite a long time in foreign countries can be traced back to the East Roman Emperor Justinian enacted "transfer Emphyteusis benefit when all the main pre-emptive," can be traced back to the Tang Dynasty of China began to form relatives and neighbors, and Cheng Dianren pre-emption right of first refusal. Under China's current civil laws and regulations have also long been clearly defined, the earliest found in 1983, the State Council promulgated the "urban private housing management regulations" and its Article 11 stipulates: "The owner of selling public rental housing, should be brought forward three month's notice lessee, in the same conditions, the lessee has the right of first refusal. " However, with the continuous development of society, constantly improve the judicial system, legislators out of the relatively weak interest in the lessee to maintain, through the development of the priority rights-based approach balanced between the lessee and the lessor's legal status, and played a stabilizing rental relations, the role of ensuring the legitimate rights of the lessee, reflecting the civil subject to achieve substantive equality between the values of the law. In view of this legislative intent, our country also made reference to the relevant foreign law establishing this system, intended to protect the tenant of this legitimate rights and interests of vulnerable groups, maintaining social stability and achieve social harmony.However, China's laws and regulations for the system was not close fully, operability is not strong, there has been a large number of practical difficulties, caused by different scale trial is not only detrimental to justice and the legitimate rights and interests of the parties, but also weakens the system itself. This paper by the relevant legal theory and examples of analysis of pre-emption in relation to housing tenant retention or abolition of the system and the corresponding solutions were analyzed and put forward their own proposals.This paper is divided into four chapters: Chapter I describes a theoretical analysis of focus from the legal system of housing tenant right of first refusal. By definition, the legal characteristics, three aspects of the exercise conditions, the introductions to the housing system of tenant right of first refusal.Chapter II with Case and analysis of China's current laws of the system's operation in China. Through a large number of judicial cases we can see that our country's housing tenants right of first refusal system in practice, mainly in the following a number of questions: whether the courts can decree the lessee to the lessor and the conditions of the third person to enter into sales contracts entered into housing, the Housing How to identify the legal status of the buyer, local tenant entitled to exercise pre-emptive rights to the entire house, when the lessor to auction houses transfer ownership of the lessee is entitled to right of first refusal for Housing, and so on. The reason why the presence of these many problems, mainly because of the legal requirements of the system simple rough, lack of artificial nature is reflected mainly in five areas: first, the premise of the lessee to exercise right of first refusal "equal terms" difficult to define; second is housing tenant pre-emption system, the principles of the law too, in practice often occur because of different understanding, which leads to decisions to differ materially from the results of the case; third housing tenant pre-emption system allows homeowners the burden of non - mandatory contractual obligations and reasonable, so that the principle of freedom of contract restrictions, the transaction order is challenged; fourth is pre-emption with the auction, in conflict with enforcement proceedings. To solve the above problem, the author designed a right of first refusal to exercise reasonable housing patterns.Chapter III focuses on pre-emption system is China's housing tenants the drawbacks. First, the changes in the legislative background of pre-emption system to bring the house the tenant a great challenge. The establishment of any system are the establishment of the period specified in the system that exist above the material living conditions. Pre-emptive rights in China's housing tenants the early establishment of the system, our acute shortage of housing resources, housing and the lessor in an absolutely dominant position, in order to better protect the interests of the lessee, the lessee of pre-emption system was designed to stabilize the rental relationship. The system itself with the then social background are closely linked. Since the reform and opening up, China's rapid economic development, housing is no longer what the scarce resources, and each household has two or more houses at the same time has become a common phenomenon, rental housing has gradually become one of the ways that people increase their income had. Earth-shaking changes in the economic context of today, the lessee during the pre-emptive rights to develop the economic background is no longer a status of the lessor and the lessee As everyone Strong As everyone is also difficult to distinguish between weak and rental contract for the sale has also been the same as the ordinary has become a common economic transactions between the legal rights of both parties should be equally protected. Based on pre-emption system, the economic background lessee has undergone a radical change in the system for today's economic development, not only no way to protect the security of transactions, in part, or even to bring a normal trade barriers. Second, the value of housing tenant pre-emptive regime difficult to achieve. As housing tenant system of mandatory pre-emptive rights to home ownership has increased the burden of the additional benefits of the housing tenant, thus impeding free trade, in violation of the principle of autonomy and undermines the principle of fair trade has led to abuse of rights, can not really achieve the purpose of safeguarding the legitimate rights of the lessee.Pre-emptive rights to the lessee by the preceding analysis discusses many aspects of the system can be seen that the system is only a unilateral concession lessee, the lessee once the exercise of that right can lead to a third party interests, the destruction of the principle of fairness, and many other adverse consequences; more importantly, the system start-up with various values of the objective pursued by or through any other reasonable system for the agency, or the value goal in itself unreasonable and should not be protected, thus repealing the tenant right of first refusal system is taken for granted. At the same time we should also see the above "rental housing owners and the use of human unity," "lessee has the actual use of the rental housing, rental housing to understand the situation and knows how to effectively use the housing" and indeed the system a rational point, society progresses, the laws should be continuous progress with social development is perfect, so in chapter IV of this article, the author focuses on how to reconstruct our country's housing tenant right of first refusal system - that is the lessee first purchase, the lessee is not concurrent with the third party system. Tenant pre-emption system in the theoretical basis, the value of goal pursuit, practice, and many other aspects of the results of shortcomings, including the most unreasonable is that the interests of third persons caused by the inevitable loss, that is, housing contract for the sale of the consultation a third person during the process of pulling in, but at the conclusion of the contract set a third person has to pay the expense of a large number of transaction costs and to prevent their access to home ownership so that it suffered loss of profits. Therefore, the new system, designed to the most critical starting point is to avoid suffering a third party should not suffer economic loss, from a practical point of view, that is, only allow the lessee as rental housing for all, do not easily allow a third party involved in the transaction, so as to achieve not only for rental housing owners and users coincided with the interests of protecting third dual purpose.