法国商法上续租权之研究与比较
发布时间：2018-08-10 19:30
【摘要】：续租权是指在租赁关系中，承租人在房屋租赁合同届满时，出租人继续出租的，所享有的请求续展合同的权利。我国法律并未明文规定承租人的续租权，仅在部分地方性法规中简要规定了优先承租权。在实务中，由于缺少具体制度的支持，法律依据单薄，即使当事人约定了优先承租权条款，但可操作性不强，履行义务容易发生争议，给司法保护带来难度，导致权利难以实现。 法国商法对续租权有一套完善的制度设计，将续租权定位于公共秩序性质，当事人不得事先约定排除。在租赁合同期限届满时，双方当事人可协商一致订立新的租赁合同；未作表示的，合同默示延展，租赁期限转为不定期；若承租人希望续租的，无法定正当事由出租人不得拒绝续租，否则对承租人因此所遭受之损失支付赔偿金。对续租租金，既可采用友好协商方式确定，因不能达成一致的而付诸司法途径的，法律亦明确了租金的计算方式。 续租权作为强制缔约制度和租赁权物权化的典型表现之一，其立法制度之建立，有助于在合同自由原则的基础上，由立法和判例协力，调整租赁双方当事人利益分配关系，保障处于薄弱地位承租人之合法权益，另一方面，从社会角度而言，亦能促进社会生活安定，，稳定商事活动的有序发展。法国商法中对于续租权的制度设计，兼顾司法介入与契约自由，不乏为一种值得借鉴的模式。
[Abstract]:The right of renewal refers to the right of the lessee to renew the contract when the lease contract expires and the lessor continues to lease in the lease relationship. The law of our country does not explicitly stipulate the tenant's right to renew rent, only in some local laws and regulations, the right of preferential lease is briefly stipulated. In practice, due to the lack of specific system support, the legal basis is weak, even if the parties agreed on the terms of priority lease right, but the operability is not strong, the performance of obligations is prone to dispute, which brings difficulty to judicial protection. It makes it difficult to realize rights. French commercial law has a set of perfect system design for the right to renew rent, which is defined as the nature of public order, and the parties may not agree to exclude it in advance. At the end of the term of the lease contract, the parties may conclude a new lease contract by consensus; if no indication is made, the contract is implicitly extended, and the lease term is changed to indefinite; if the lessee wishes to renew the lease, The lessor shall not refuse to renew the lease, otherwise the lessee shall be compensated for the loss suffered as a result. Rent renewal can be determined by friendly negotiation. If the rent can not be agreed, the law also defines the method of rent calculation. As one of the typical manifestations of the compulsory contracting system and the real right of lease, the establishment of the legislative system is helpful to adjust the relationship between the interests of both parties on the basis of the principle of freedom of contract and the cooperation of legislation and jurisprudence. On the other hand, from the social point of view, it can promote the stability of social life and stabilize the orderly development of commercial activities. In the commercial law of France, the design of the system of the right to renew rent, taking into account the judicial intervention and the freedom of contract, is a model worthy of reference.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.2
[Abstract]:The right of renewal refers to the right of the lessee to renew the contract when the lease contract expires and the lessor continues to lease in the lease relationship. The law of our country does not explicitly stipulate the tenant's right to renew rent, only in some local laws and regulations, the right of preferential lease is briefly stipulated. In practice, due to the lack of specific system support, the legal basis is weak, even if the parties agreed on the terms of priority lease right, but the operability is not strong, the performance of obligations is prone to dispute, which brings difficulty to judicial protection. It makes it difficult to realize rights. French commercial law has a set of perfect system design for the right to renew rent, which is defined as the nature of public order, and the parties may not agree to exclude it in advance. At the end of the term of the lease contract, the parties may conclude a new lease contract by consensus; if no indication is made, the contract is implicitly extended, and the lease term is changed to indefinite; if the lessee wishes to renew the lease, The lessor shall not refuse to renew the lease, otherwise the lessee shall be compensated for the loss suffered as a result. Rent renewal can be determined by friendly negotiation. If the rent can not be agreed, the law also defines the method of rent calculation. As one of the typical manifestations of the compulsory contracting system and the real right of lease, the establishment of the legislative system is helpful to adjust the relationship between the interests of both parties on the basis of the principle of freedom of contract and the cooperation of legislation and jurisprudence. On the other hand, from the social point of view, it can promote the stability of social life and stabilize the orderly development of commercial activities. In the commercial law of France, the design of the system of the right to renew rent, taking into account the judicial intervention and the freedom of contract, is a model worthy of reference.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.2
【参考文献】
相关期刊论文 前6条
1 金伏海;;续租权与铺底权之比较[J];比较法研究;2006年04期
2 李飞;;营业财产理论评析——构成要素、性质及其在商法上的地位[J];法律科学(西北政法学院学报);2008年02期
3 周s
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