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Study on the Preemptive Right of Housing Lessee

Author: XiangPingPing
Tutor: LinGang
School: Southwest University of Political Science
Course: Civil and Commercial Law
Keywords: Lessee Right of First Refusal The nature of the rights Right to exercise Conflict of rights
CLC: D923
Type: Master's thesis
Year: 2011
Downloads: 174
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Abstract

Lessee pre-emption system as an important system of civil law, the legal balance freedom of contract, civil subject autonomy vulnerable groups the interests of protecting the relationship of the three results. This system will not only meet the needs of the society of the rule of law, freedom of contract and follow the two most important principles of private law autonomy, and also taking into account the protection of the legal interests of the disadvantaged groups. Lessee pre-emptive rights system is a true reflection of the country to use legal means to intervene in the economic life, and also to meet the requirements of emphasis on the use of modern property rights for the use Value concept. Our civil legislation had a long tenant right of first refusal provisions of the system, but because of the existing legal provisions for this system is not perfect, not only caused difficulties and confusion in the application of the law in the judicial practice, but also damages the housing tenant pre-emptive rights of the people, thereby affecting the function of the system to play. China's civil law expert community for some of the basic problems of this system has not yet reached a consensus. In view of this, this article will be based on our existing law, combined with the latest theoretical research, compare and learn from foreign legislation, to discuss the current tenant pre-emption system, in order to favor the system. improved. This article is divided into three parts: the first part is some of the basic theory of pre-emptive rights regime of the Lessee, mainly around the concept of pre-emptive rights of the Lessee, the necessity of institutional existence and how this system of positive certainty discussion. Our civil law scholars housing tenant pre-emption system whether there is still a need for its existence has been controversial, although I think that the reason advocated the abolition of the right of first refusal reasonable, but the system has value and necessity speaking, in the provisions of the law on pre-emptive rights of the tenant system is still viable move. The social basis of the survival of the regime still exists, can bring great economic benefits, but also has the \The formation of the right of our civil law scholars around the tenant right of first refusal nature forced contracting request the rights, property rights, claims and other theories, has a place worth learning, but I believe that only in accordance with uniform standards accurate characterization of the System. I will define the nature of the pre-emptive rights of the tenant in accordance with the classification of civil law rights standards. Role as the criteria for the classification of civil law rights, I will housing tenant right of first refusal qualitative formation right. The criteria for the classification effectiveness of the author's rights, pre-emptive rights is defined as housing tenant claims. The second part focused on the Lessee the right of first refusal to start on the exercise. Since the establishment of the legal acts and exercise are two there is a link, but a different concept, so I investigate the pre-emptive right exercise before you do some discussion on the establishment of this right when the lessee the right of first refusal because the lease contract signed when inaugurated, not the tenant may claim the right of first refusal enjoyed. The rental contract established between the parties is the lessee enjoys the start time of the pre-emptive rights. In addition to housing tenant right, exercising subjects, I believe that the sub-lessee, can also become jointly living with the lessee the right to exercise the main body. The right to exercise conditions including the lessor betrayed leasing houses, in the same conditions, the lessee intends to purchase intention exceptions to the law and does not belong to the three conditions. China's legislative conditions for the exercise of preemptive rights of the lessee did not make a sound regulations, to avoid inadequate legislation and applicable on the difficulties to bring judicial practice, I will be explored in detail the three conditions of the right to exercise should have : \circumstances exception supplement elaboration. The third part of elaborate analysis around how to deal with the problem of the relationship between tenant right of first refusal and other rights. China's legislation recognizes both the pre-emptive rights of the tenant, housing tenants the right of first refusal provisions in the \conflict. When both clashes in reality, from the legislators to the legislative mind, combined with the social reality of our country, the tenant's right of first refusal should exercise pre-emptive rights take precedence over housing tenant. When the time of the pre-emptive rights of the lessee and sub-lessee conflict, given the times lessee priority tenant to exercise pre-emptive rights practices more in line with the concept of pre-emptive rights of the legislative purpose and the fair value. Since the establishment of the mortgagee does not need to transfer possession of the property, so it will not impact on the possession and use of the property, so homeowners can be set on the rental housing mortgage. Homeowners housing situation of the coexistence of tenancy rights and Mortgages, mortgage rights of the mortgagee when necessary in respect of rental housing, housing tenant may claim the right of first refusal enjoyed.

Study on the Preemptive Right of Housing Lessee

Abstract

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