The Study On The Execution Of The House Lessee’s Purchase Priority

According to domestic and foreign experts and scholars on the study of thelessee’s preemptive right, there are no consensus about the characteristic,the establishment and the practice elements of the lessee preemptive right. Laws and regulations are not perfect in the legal relief measures, procedures, the amount of compensation and the standards to be determined after the lessee preemptive right is violated, resulting in the non-unified standard when court judges the lessee preemptive rights disputes in judicial practice. In order to solve the dispute of above problems, this paper has studiedthe nature, establishment and practice elements, right relief system and so on of housing lease who has this special subject priority purchase right on the basis of the existing research, hoping for doing a bit for this system’s perfection. This paper has been divided into four parts to elaborate:The first part has defined the nature of this right. On the nature of preemption right, the theoretical cycle mainly has the debate between the formation right theory and the conditional formation right theory, the debate between the property right theory and the credit theory, the debate of expecting right theories, etc. According to the constitutive elements of formation right, the lessee’s preemptive right is belonged to the formation right. Because once the lessee agrees with the leaser’s notice, and can afford the same trade terms as the third party, then the lessee can sign a sale contract with the leaser. It is also consistent with the goal and purpose of legislation that define the preemption right as formation right.The second part analyzes the conditions of establishment and exercise of lessee’s preemption right. The lessee’s preemption right comes from the leasing contract. Its establishment must meet two basic conditions which are subject competence and basic fact. In terms of determining the right’s exercise condition, mode and time limit, the author advises to refer to the relevant regulations about several co-owners in the Interpretation on the Matters of Real Right Law of the People’s Republic of China,issued by the Supreme People’s Court.The third part analyzes the conflicts between the process of lessee exercising the preemption right and relevant rights. The author, using related opinions of scholars for reference, elaborates the solutions of exercising preemption right for special subjects, such as several lessees and lessee of part leasing, and makes clear that several co-owners’ preemption right and lessee’s preemption right are two different concepts, and there are no conflicts between the two concepts.The last part is the advice for improving lessee’s preemption right institution. Through collecting specific cases from the court trials, the author summarizes lessees’ claims and court judgmentswhen the lessee’s preemption right was infringed. According to the summary, the author proposes to enhance the legislation regulation and improvement in terms of admitting appointed preemption right, shortening the leaser’s notice period, simplifying the litigation procedure and other aspects. Regarding the comment and analysis concerning the regulation, that the lessee’s preemption right can not oppose to registered good-mind third party in the Interpretation on the Matters of Certain Issues Concerning the Specific Application of Law in the Trial of Contractual Disputes over the Leasing of Urban Housing(hereinafter referred to as the Interpretation of Leasing Contract), the author believes this regulation is not beneficial to protect the lessee’s right and suggests that through the leasing contract’s register condition to assure whether to oppose the good-mind third party. In determining the damage compensation amount which no laws are stipulated for lessee’s right being infringed the introduction of loss of chance doctrine to determine the amount of compensation is proposed so as to make up for the lessee’s losses to the maximum extent after comparing and drawing lessons from foreign theory results.