On The Preemptive Right Of House Lessee To Purchase

As a civil and commercial legal system,the tenant’s preemption right is closely related to my country’s macro-housing policy.In 2020,the tenant’s pre-emption right was formally written into the Civil Code of the People’s Republic of China on the basis of fully absorbing the provisions of the “Contract Law” and its related judicial interpretations.The promulgated “Civil Code” and the supporting judicial interpretations are relatively simple in terms of the pre-purchase right of the house tenant,which is basically a comprehensive absorption of the original regulations,and the operability is not strong.In practice,there are still many differences in the application of the law.Different local and municipal courts have different opinions on the understanding of the tenant’s pre-emption right and the degree of rights protection that should be given to the tenant,and they are in a balance between the legislative purpose of implementing this right and the reasonable protection of the legitimate rights of the third party.The dilemma leaves room for judges to operate,resulting in the phenomenon that different courts make different judgments in the same case,which is detrimental to legal authority and unfavorable.This paper is divided into four parts.The first part studies the internal effect of the lessee’s pre-emption right,which mainly involves the establishment of the lessor and the lessee’s house sales contract.First of all,the performance of the notification obligation is the basis for the establishment of the contract.The lessor’s performance of the notification obligation should adopt the post-event notification mode,that is,the lessor shall,within a reasonable period of time after negotiating with a third party to establish a house sales relationship,properly and truthfully in accordance with the law Notify the tenant.Secondly,there are different theories on the nature of the renter’s right to preempt the house.After analysis,the author thinks it is more appropriate to define it as the right of claim with compulsory contractual obligation.In the face of an offer issued by the lessee,the lessor cannot refuse to sign a contract without any reason.There is a compulsory commitment obligation to the lessee,and the buyer-seller relationship between the two parties is established.Finally,the determination of “equivalent conditions” in the contract terms should not be too rigid and dull,and should be based on price and combined with other transaction conditions to comprehensively measure to ensure the maximization of the interests of the lessor and the protection of the interests of the lessee.The second part analyzes the external effect of the lessee’s right of first refusal;first,it analyzes the validity of the sales contract concluded between the lessor and a third party.The validity is not affected,even if the third party and the lessor maliciously collude to infringe on the rights of the lessee,but because the house sales contract between the lessor and the third party is the basis for the lessee to exercise the rights,it should be recognized as valid;The issue of the order of performance of the sales contract,because the two house sales contracts established successively are both legal and valid,and the legal effect of double sales is formed between the lessor,the third party and the lessee.Priority,its performance order is prior to the third party;finally,it analyzes whether the preemption right has the effect of antagonizing the real right of the third party,and the lessee should be given the antagonistic effect of the preemption right under certain conditions,so as to avoid this system being a mere formality.The third part focuses on the possibility of conflict between the lessee exercising the pre-emption right and other rights subjects and the way to resolve it.It mainly analyzes whether there is a conflict of rights between the lessee and the sub-lessee.The author believes that the sub-lessee should be given the right of first refusal and its rights should be given priority over the lessee in order to achieve the legal effect of stable living.The possibility of the pre-emption right of the tenant and the pre-emption right of the lessee may co-exist,and it is considered that the two are co-occurring and the rights of the co-owners in each share take precedence over the lessee.It constitutes a new type of pre-emption right;there is a mortgage on the leased house of the lessee,and there is no difference between the time of the establishment of the mortgage and the lease relationship,and it does not affect the exercise of the lessee’s pre-emption right.The fourth part mainly discusses the damage compensation of the lessee’s right of first refusal.Firstly,it mainly discusses the types of infringement on the rights of the lessee;secondly,it analyzes the nature of the damage liability for infringement of the lessee’s right of first refusal.The author thinks that the analysis should be carried out according to specific cases and should not be applied rigidly;finally,this part determines the scope of compensation and calculation standards,with a view to helping judicial practice.