The Research Of The Legal Institution Of The Preemprion Right Of Tenant

The pre-emption right of tenant has been lasting for long time in China, it also takes up a place in the legal family in modern country. However,the related disputations never stop, the key point of these disputations lies in the wrong realization those scholars have to the pre-emption right of tenant. Thus, those scholars have wrong realization to many aspects of the pre-emption of tenant such as the function, the condition to exercise the right, how to deal with conflict between the pre-emption of tenant and other pre-emptions. So, many scholars who is against this institution agree that this institution should be cancelled. It's real a big fallacy.This paper made a comparative analysis of a variety of doctrines on the legal nature of the pre-emption right based on the relevant academic research results, and cleary defined the pre-emption right as the right to obtain property according to China's relevant laws and regulations. Dig out the unique social values and functions that the pre-emption right system shoulds and pointde out that the tenant's pre-emption right can not be replaced by other systems. Then, the paper made some simple and obvious and bold attempt about the right conditions to exercise the right, limitations, publicity, and the rules to deal with conflicts between the tenant's pre-emption right and other pre-emption right.This paper is divided into four parts:The chapter one focuses mainly on the development trajectory and the real necessity to exist of the tenant's pre-emption right.The chapter two focuses mainly on the legal nature of pre-emption right. And then put forword the paper's view that it is the right to obtain property on the basis of extensive evaluation of other scholars'view on the question. At last, the paper explores the legal features of pre-emption right.The chapter three focuses mainly on the exercising conditions, limitations, and publicity of the tenant's pre-emption right. Although the tenant's pre-emption right has been established as an right to obtain property when the house-lease contract takes force, it need certain conditions to be exercised. At the same time, it also subjects to certain restrictions.The chapter four focuses mainly on the conflicts between the tenant's pre-emption right and other pre-emption rights, the rules to deal with these conflicts. The chapter includes the conflicts between the tenant's pre-emption rights and the house co-owner's pre-emption right, sub-lessee's pre-emption right, the right of mortgage and the rules to deal with these conflicts. In addition, the section also discusses other areas such as clear notice period, the judicial protection legislation.The principal innovation of this article:Firstly, this paper defined the tenant's pre-emption right as an an right to obtain property from the point of the effective protection of the tenant's right. This differs from previous scholars.Secondly, this article made a systematic and operational test on the rules to deal with the conflicts between the tenant's pre-emption rights and the house co-owner's pre-emption right,sub-lessee's pre-emption right, the right of mortgage for the first time.