房屋优先承租权法律问题研究
发布时间：2018-10-20 13:35
【摘要】：在市场经济发展的进程中,房屋租赁作为日常生活中日益增多的社会行为,其发展态势越来越复杂,从法律层面上来讲,也成为越发重要的一种民事法律关系。在这个过程中,新的问题不断发生,由此产生的有关优先承租权的纠纷也呈现出增多的态势,法学界对之也有众多探讨。本文中所提及的优先承租权仅狭义地指房屋优先承租权,本文尝试从保护处于弱势地位的承租人利益的角度出发,综合考量出租人与承租人双方利益,以此对房屋优先承租权的法律问题作出一些探析。以下是本文对于房屋优先承租权法律问题分为几个部分所做的论述:第一部分介绍了优先承租权的基本理论。理解优先承租权首先应从民事优先权着手,本文从学界对民事优先权的概念理解上的几种不同观点引出其基本定义,进而对民事优先权进行分类。对民事优先权分类的探究使本文讨论的优先承租权概念、性质等问题具备一定的基础。本文所要讨论的优先承租权限定在当事人房屋租赁关系中的优先承租问题,而并不涉及动产租赁范畴,同时,这种房屋租赁包括居住型用房的租赁和经营性用房的租赁。对本文所要讨论的优先承租权法律问题有了较为明确的界定后,对其概念进行了一定比较和明确。实践中,由于优先承租权并没有为法律所直接规定,所以在案件审理时没有统一的标准,法院的判决也各有不同。本文第二部分举出优先承租权纠纷的相关案例,有些法院在司法实践中支持承租人的优先承租权,但在法律上的空白导致承租人的利益仍无法得到有效保障,由此提出目前争议的焦点:优先承租权是否有给予保护的必要性?优先承租权的性质是什么?优先承租权应如何实现?这些问题也是本文探究的主要内容。第三部分主要介绍了法国商事租赁续展权制度。由于战争的破坏,法国为了保护承租人的权益,出现了商事租赁续展权,经过不断地实践和总结,逐渐建立了商事租赁制度。由于法国有关优先承租权的立法较为成熟,此部分对法国商事租赁续展权产生背景、适用范围及条件、行使及限制做了一定的介绍,这对我国建立相应的房屋优先承租权制度有一定借鉴作用。对于后文就优先承租权从几个方面进行评价有一定参考意义。有了以上三个部分的论述作为基础,本文第四部分从优先承租权的法律性质、特征、对“同等条件”的理解、与优先购买权的比较入手,对优先承租权进行了一定的评价,从而对其有更为全面和深入的理解和剖析,最终提出我国房屋优先承租权制度应如何构建。有关优先承租权的地方性法规已经在上海、浙江、郑州、新疆、厦门、武汉等地出现,但仍未被法律及行政法规确认。所以,本文第五部分从优先承租权立法保护的必要性、权利保护范围、行使条件、优先承租权发生冲突时的解决途径、排除优先承租权行使的正当理由、优先承租权受侵害时的救济途径等方面就我国房屋优先承租权制度的建立提出了一些构想。受我国经济发展的限制,对承租人优先承租权的保护较为欠缺,需要不断地在实践中总结、借鉴其他国家的成功实践经验,并通过法律规制的方式将相关制度确立下来。本文通过以上五个部分的论述和探讨,以期学界及立法部门引起重视,及时弥补法律空缺、有效保障弱势群体利益、稳定社会经济秩序。
[Abstract]:In the process of market economy development, house leasing as an increasing social behavior in daily life, its development situation is more and more complex, from the legal level, it also becomes more and more important civil juristic relation. In this process, the new problem continues to occur, and the disputes arising therefrom also show an increasing trend, and there are numerous probes into it in the law field. In this paper, the priority right of the lessee refers only to the right of priority of the house. In this paper, the author tries to take into consideration the interests of the lessor and the lessee from the viewpoint of protecting the interests of the lessee in the weak position, so as to make some analysis on the legal problem of the right of priority to the house. The following is a discussion about the legal problem of the right of priority to housing in the first part: the first part introduces the basic theory of the right of priority. Understanding the priority right of priority should begin with the civil priority, this article draws its basic definition from several different points of view of the concept understanding of civil priority from the academic circles, and then classifies the civil priority. The inquiry into the classification of civil priority has a certain base on the concept, property and so on of the priority right of priority. The priority right of lease discussed in this paper defines the priority lease problem in the relationship between the parties' house lease, and does not involve the property leasing category, meanwhile, this kind of house lease includes the lease of the residential house and the lease of the operating room. After a clearer definition of the legal issues of priority rights law to be discussed in this paper, the concept of the priority rights law is comparatively and clearly defined. In practice, since the right to priority is not directly regulated by law, there is no uniform standard in the case of the case, and the court's decisions vary. In the second part of this paper, there are some cases of priority disputes, some courts support the lessee's priority right in the judicial practice, but in the legal gap, the lessee's interests can still not be guaranteed effectively, thus putting forward the focus of the present dispute: Is priority given to the need for protection? What is the nature of the priority right? How should priority be achieved? These questions are also the main contents of this paper. The third part mainly introduces the French commercial lease renewal right system. In order to protect the rights and interests of the lessee, France has developed the right to renew the commercial lease in order to protect the rights and interests of the lessee, and has gradually established the commercial leasing system through continuous practice and summary. Due to the maturity of France's legislation about priority rights, this part gives a certain introduction to the background, scope and condition, exercise and restriction of French commercial lease renewal right, which has a certain reference for the establishment of the corresponding system of housing priority right. There is a certain reference to the evaluation of the right of priority in the following text from several aspects. On the basis of the discussion of the above three parts, the fourth part of this paper begins with the legal nature, character, understanding of the 鈥渦nder the same conditions鈥，
本文编号：2283335
[Abstract]:In the process of market economy development, house leasing as an increasing social behavior in daily life, its development situation is more and more complex, from the legal level, it also becomes more and more important civil juristic relation. In this process, the new problem continues to occur, and the disputes arising therefrom also show an increasing trend, and there are numerous probes into it in the law field. In this paper, the priority right of the lessee refers only to the right of priority of the house. In this paper, the author tries to take into consideration the interests of the lessor and the lessee from the viewpoint of protecting the interests of the lessee in the weak position, so as to make some analysis on the legal problem of the right of priority to the house. The following is a discussion about the legal problem of the right of priority to housing in the first part: the first part introduces the basic theory of the right of priority. Understanding the priority right of priority should begin with the civil priority, this article draws its basic definition from several different points of view of the concept understanding of civil priority from the academic circles, and then classifies the civil priority. The inquiry into the classification of civil priority has a certain base on the concept, property and so on of the priority right of priority. The priority right of lease discussed in this paper defines the priority lease problem in the relationship between the parties' house lease, and does not involve the property leasing category, meanwhile, this kind of house lease includes the lease of the residential house and the lease of the operating room. After a clearer definition of the legal issues of priority rights law to be discussed in this paper, the concept of the priority rights law is comparatively and clearly defined. In practice, since the right to priority is not directly regulated by law, there is no uniform standard in the case of the case, and the court's decisions vary. In the second part of this paper, there are some cases of priority disputes, some courts support the lessee's priority right in the judicial practice, but in the legal gap, the lessee's interests can still not be guaranteed effectively, thus putting forward the focus of the present dispute: Is priority given to the need for protection? What is the nature of the priority right? How should priority be achieved? These questions are also the main contents of this paper. The third part mainly introduces the French commercial lease renewal right system. In order to protect the rights and interests of the lessee, France has developed the right to renew the commercial lease in order to protect the rights and interests of the lessee, and has gradually established the commercial leasing system through continuous practice and summary. Due to the maturity of France's legislation about priority rights, this part gives a certain introduction to the background, scope and condition, exercise and restriction of French commercial lease renewal right, which has a certain reference for the establishment of the corresponding system of housing priority right. There is a certain reference to the evaluation of the right of priority in the following text from several aspects. On the basis of the discussion of the above three parts, the fourth part of this paper begins with the legal nature, character, understanding of the 鈥渦nder the same conditions鈥，
本文编号：2283335
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