On Preemption System Of Lessee

Lessee preemption system is one of the most popular civil law systems in most countries of the world which was established in order to protect the vulnerable group, fairness and justice, and maintain stable social relationships. Its core value is to “support the poor and ensure their residence”. Although China has established a lessee preemption system, but very few of the provisions related to the system has clearly defined the nature of the preemptive rights, the elements of the exercise and the effectiveness of the exercise, leading to the differences in understanding the effect of preemption in academic area and the different criteria for judging system in the judicial practice.Given this situation, the paper is divided into three parts:The first chapter is the formation and the position of preemptive rights, after sorting out the history of the evolution of preemptive rights in the first quarter, we can conclude that the key reason for the birth of the preemptive rights is to “support the poor and ensure their residence”.Based on affirming the value of the preemptive rights system, namely, the value of fairness, order and efficiency, we conclude that the preemption system of lessee is still necessary today. Through the assessment and consideration of the current doctrine in second quarter, we draw a conclusion about the essential attribute of preemptive rights,that is conditional right of formation.The second chapter is to introduce theory of practice of preemptive rights. The first section focuses on the time of the establishment of preemptive rights which is based on the legality of lease relations. Section II is designed to investigate the exercise condition of preemptive rights, namely, "The lessor to sell the house" 、 "Equal Condition" and "Term Conditions". “Sell” shall mean the establishment of contract between the lessor and the third party. “Equal Condition” shall mean “same price” without restricted condition under law or the agreement between the parties. "Term Conditions" shall mean the limitation of 15 days. Section III discusses respectively about whether preemption has the resistance effect and remedy or not. Preemption shall not have the resistance effect according on the legislative intent and legal system, which means that the preemptive rights could not confront a contractual relationship with a third party. The remedy mainly related to the way of infringement on preemptive rights and remedy method. The majority of infringement on preemptive rights is that the lessor fails to perform the obligation to notify the lessee which leads to the invalidation of preemption. Lessee could sue for the breach of the lessor.The third chapter of this article is intended to solve difficult problems in the judicial practice. The first section focuses on preemptive rights of the sublet relationship, and defines the subject of preemptive rights, that is the second tenant instead of the tenant. Section II discusses on whether tenant who leases part of the house has preemptive rights or not. It is based on various factors such as housing area, function, integrity and benefits. Section III discusses about the conflict of preemptive rights between Owners-in-common and lessee which should not be existed because of the various differences of object of rights, nature, legislative purpose and effects.