On the the existing tenant right of first refusal system defects and improve the（在现有租户对优先购买权制度的缺陷和完善）

1、 on the the existing tenant right of first refusal system defects and improve the abstracts by the supreme peoples court explained >> << concrete application of the law a number of issues on the trial of the the town rental contract disputes, in which the lessee housing right of first re

2、fusal to make further provisions for pre-emptive nature of the lessee, restrict the exercise of the case and the remedies are re-defined, but its there on a particular issue can be reconsidered, and the explanation is the same conditions, a reasonable period of time and the amount of compensation is

3、 not yet clear. this article on these issues in depth analysis, in order to further improve our countrys the lessee housing pre-emptive system. paper keywords priority pre-emptive rights of the tenant , the meaning and origin of the tenant right of first refusal the tenants right of first refusal is

4、 in the lessor for sale house to a third party, it should be within a reasonable time before the sell houses, notify the lessee, the lessee is legally entitled to precedence over the others, the right to purchase under the same conditions. the beginning of the legislative, real estate resources are

5、not abundant, so the lessee enjoys the right of first refusal of the housing is logical, but society today, real estate resources have been abundant, the lessor of such rental to the lessee and not others? may be based on a mutual trust relationship established in good faith based on this the lease

6、relationship makes lessor should be told in advance when to sell the lease the lessee, the lessee leased housing the other hand, also because of a variety of factors: reasonable prices and convenient transportation, trust the lessor, even in order to obtain the right of first refusal as a lessee, th

7、e reliance interest paid by the lessee to the lessor is the need to respect and protect. judging from the contract law, the lease contract is a bilateral contract, bilateral contract obligations to the transfer of such lease obligations also need to go through the consent of the lessee can, therefor

8、e, the intention of pre-emptive rights from the lessee look, the lessees right of first refusal is in order to protect the stability and security of the lease relationship, the power of the lessor to sell the ownership of rental housing to certain restrictions. analysis << >> explain the

9、 lessee the right of first refusal system with economic development, sale and lease of housing more and more, also appeared in a series of problems in the trial practice, therefore, in 2009, the supreme peoples court issued a << supreme peoples court of justice judicial interpretation of the u

10、rban rental contract disputes> (hereinafter referred to as << explained >> the provisions of article 21: “seller sells rental housing is not within a reasonable time, notify the lessee or the presence of the pre-emptive rights situation of the other against the lessee, the lessee requ

11、ests lessor liable for damages, the people the court should be supported, but request confirmation signed by the lessor and third party sale of housing is invalid, the peoples court shall not support. “this abolished on the implementation of the general principles of the civil law of the peoples rep

12、ublic of china supreme peoples court << (for trial implementation the >> 118 lessee may request the court to declare invalid stipulation of the sale of housing. << explained >> clear the lessor against a lessee housing pre-emptive obligation is to compensate for the losses ra

13、ther than forcing the transfer housing ownership to the lessee, improve our lessee pre-emptive system, to make up for the deficiencies of the prior contract law, but the interpretation of provisions for pre-emptive rights of the lessee still vague, open to question one by one, following the author d

14、iscussed. (a lessee pre-emptive nature of the dispute << interpreted >> prior to the introduction of the theoretical community has been debating the nature of the right of first refusal by the lessee, respectively, have the right to look forward to, claims, claims, conditional right of f

15、ormation, etc. there are two german pre-emptive nature : the property rights of pre-emption claims and rights of first refusal, the difference between the two is whether against a third party and our country << explain >> that the lessees right of first refusal statutory priority contrac

16、ting rights, the department of creditors, effective against third parties i believe that the lessees right of first refusal is a right of formation, as long as the means of purchasing the lease housing can be formed with the lessor buyer-seller relationship, without the need for building ownership a

17、greed to betray the meaning of the other words, as long as both the rental contract of the parties, as long as they did not agree to exclude the pre-emptive rights as a lessee in the lease contract, the right of first refusal shall be formed, but this right of formation with stop condition, only bet

18、rayed lessor of rental housing in the third person, the lessee is able to exercise. therefore, the combination of a number of doctrines, i believe that pre-emptive rights of the tenant in china should be the right of formation of the claims as a creditor of the right of formation, through the exerci

19、se of pre-emptive constraints, the lessee lessor, but the lessee can not use this right to affect the third party has obtained the building ownership. contractual relationship established between the lessee and the lessor, when the lessor building ownership is not transferred to the third party, the

20、 lessee shall have the right to request the lessor to perform the contract, if the rental housing has been the transfer of ownership, the lessee can only request the lessor liable for damages. (<< explained >> in the lessee the right of first refusal restrictions explains << >&g

21、t; the provisions of article 24: “having any of the following circumstances, the lessee priority should be given to buying a house, the peoples court shall not support: . (2 lessor will sell housing to close relatives, including spouses, parents , children, brothers and sisters, grandparents, grandp

22、arents, grandchildren, grandson of their children. “lessor to sell a rental is not the lessee a notice within a reasonable period or pre-emptive rights situation there are other against the lessee, the lessee requests lessor liable for damages, the peoples court shall explain << >> i sup

23、port but the request to confirm the lessor and the third signed a contract for the sale of the housing invalid, not supported by the peoples court. “ explained because our << >> the lessees right of first refusal statutory priority contracting rights, claims against third parties from th

24、e requirement, so the requirement that the lessee right of first refusal does not matter right in the nature of the right, pursuant to which the judicial interpretation of the provisions, the lessor against a lessees right of first refusal, the lessee can only claim damages, and can not be purchased

25、 housing request a contract for the sale invalid. lessee selected remedies only damages a pre-emptive remedies once under the lessee is totally different. << advice >> 118, the lessee to the court to bring a civil action, and exercise their right of first refusal asked the following clai

26、ms: first, ask the court to confirm the sale between the lessor and the buyer is invalid, requesting the court to the lessee pays to the lessor to the buyer the same price to obtain the ownership of the leased property in front of a lawsuit request for confirmation suit, while the second claim can b

27、e defined as a payment claim, dispute that the lease contract and the contract for the sale are bilateral contract should be followed autonomy principle, if the court in support of the claim, it seems that the public authority intervened to private rights, contrary to the principle of autonomy, forc

28、ed the lessor and lessee entered into a contract for the sale is suspected., the litigation requests can easily lead to disputes. therefore explain << >> 21 changed the lessee priority relief is a grain of truth, the effectiveness of the pre-emptive rights of the original lessee is relat

29、ively weak, coupled contrary to the principle of autonomy, so << but i believe that this provision may cause a problem: if the infringement cost is not high, may sell the rental when the lessor, will not even notice the lessee explain >> take longer to declare the contract for the sale i

30、nvalid. because the consequences of willful infringement at most, only compensation for loss of profit may be far higher than the loss of compensation from the the housing tenant party, the main purpose of the exercise of its right of first refusal to purchase housing, and not receive compensation t

31、he consequences could be caused by the lessees right of first refusal to be an empty promise. third, the right of first refusal by the lessee system improvement (lessor betray a clear period of notice of housing explains << >> has made it clear the lessees right of first refusal exercise

32、 period of only 15 days, the regulations also contain a layer of meaning, is to set the notification obligations of the seller, but the explanation was not clear lessor to fulfill notice the duration of the obligations of private housing management regulations. << cities in china >> arti

33、cle 11 provides that: homeowners sell the rental, the lessee three months notice in advance. “<< advice >> 118 also made a related , the provisions of the regulations has been discontinued. later << >> article 230 of the contract law to change the period of three months notic

34、e within a reasonable period before the sale “a reasonable period of time, however, how to master? law does not explicitly reasonable period of time specific time between the target amount of housing transactions in general larger than the lessor shall notify the lessee in advance sellers intention

35、to the lessee fully taken into account during the period because of the abuse of this right in practice, there are many lessor random delay time, intentionally causing lessee less than 15 days to prepare trading funds or mobility, loss of trading opportunities, such lessee is extremely unfair. or it

36、 might happen the other extreme, is the event of an emergency , the lessors economic situation deteriorated significantly need to sell house, to go through the so-called “reasonable” notice period, then such provisions of the law may impair the rights of the lessee, the lessor is not fair. in a spec

37、ific case the lessor to sell the house is divided into two time periods, the first period of solicitation invited session is the lessor with going to betray the intention of the second period is the contract stage, the third party has been willing to buy housing reached a purchase agreement with the

38、 seller in the first period, the considerations and the preparation time of the lessee, the lessor may at any time notify the lessee, the lessor and the third person to enter into a contract for the sale of the second period is reached, lessee should be notified as soon as possible in order to make

39、the lessee has sufficient time to consider whether or not to enter into the contract of the same conditions, at the latest, should the sale and purchase agreement has been reached within three days, notify the lessee. (identified on the same conditions “ our laws provide that only the lessee in orde

40、r to exercise the right of first refusal under the same conditions, but whether the “same conditions” refers only to the price conditions? judicial interpretation there is no clear description, i believe that the same conditions connotation should grasp three aspects: first, price conditions, and se

41、cond, the payment of the price conditions, three other conditions. first of all, the price of housing is the the seller most concerned about trading conditions, under normal circumstances, the seller will choose a higher offer buyers the same conditions, therefore, must contain the price of the same, but the seller in considering the sale price of may also consider other risk factors such as the way of payment