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The court on the plaintiff and the defendant, Liu Xu together in the service of his father, demobilization,They decided to negotiate jointly funded and built by the two shared a house.Shortly after the approval of the relevant authorities made common land, and built a two-story residential old practice, the result of a family of four who live in one-story,Liu family of five people living in a two-story.After 2002, the defendant Liu's father, a major in chemical plant accident charged, died after treatment ineffective.Liu returned to the capital to live with their mothers, and asked Xu took the plaintiff management, has been accused Liu attend school,After she graduated in a hospital when the retaining distribution of origin.Liu learned from the defendant, his mother still own property in their country of origin after finding the plaintiff Xu, asking for the return of property.live a result of housing to Liu, the two sides agreed to re-property rights, Wells entered into an agreement, namely :This two-story room (45 square meters) of property under the Housing Liu all.The final result of all property level housing (55 METERS m 2), one of the final nod Liu property rights, but a result of use;Xu property under one toilet, but Liu also be used, and with the consent of the mother, Liu,for the corresponding procedures.The defendant Liu marriage, isolated in a hospital room apartment.Just a chess marriage, is there is no place to live, find Liu, Liu would like to help rental housing.After two consultations, Liu to rent to chess, 280 yuan monthly rent and a result of the fighting over, a result of no objection.Shortly, the accused Liu's husband to go abroad for advanced study, Liu also prepared from school together, we want to sell houses.Xu, after learning that their son is about to get married, not married housing and tried to Liu bought the house.Liu proposed sale prices 15,000 yuan, Xu Levin agreed that the end of the high prices, chess, after learning are eager to buy.Liu also said it would be possible to immediately pay the same price Liu 15,000 yuan, but several rounds of consultation.Finally the two sides were to 13,000 yuan, a chess When will the housing fund to Liu, and to handle the transfer of housing.Xu informed of this issue, Liu found that they have right of pre-emption, should be bought.But Liu think chess as housing tenant, the law provides a right of pre-emption, not a result of adhering to the requirementsXu helpless, to stop the court prosecution, Liu declared null and void a contract for the sale of housing and chess, to protect their legitimate rights and interests.County People's Court accepted the case, the outcome of the trial, as the third supplementary chess.The plaintiff accused Liu Xu Xu argued that the plaintiffs are : the original total sales.Although Liu's property rights in its housing has been separated, but still a whole needed to support each other andthey should enjoy the right of pre-emption, the defendant Liu 13,000 yuan to the shelf price of a house sold a third chess.their knowledge that the defendant did not notify their Liu,and the third defendant, Liu thus chess sale of the housing should not be that effective.Liu argued that the defendant : in accordance with laws and regulations, the lessee has right of pre-emption chess.Xu regard to its own sought the views of the two sides did not reach an agreement, and have set themselves a chess housing sales contracts,Two-housing fund, and procedures for the transfer.Third chess claimed as lessee, the right of pre-emption law.request the court to protect their legitimate rights and interests.People's Court held that : Third chess as housing tenants have the right of pre-emption law.Fangjiekuan accused Liu and Xu also exchanged views on the sale, a result of high prices that, absent consent,deemed to be a waiver of their right to buy.Judgment : (1) and the third defendant, Liu housing transactions between chess and effective.(2) Xu dismissed the plaintiff's claim.Judgment, the plaintiff refused to accept the result of an appeal.The Intermediate People's Court held that a plaintiff : Housing is a result of the right of pre-emption to Liu.Liu and the third respondent chess housing contract to sell real void, the law applicable to the original verdict wrong, so the original verdict.Judgment : (1) The respondent Liu and the third chess Housing Sale invalid.(2) Appellants result of the right of Preemption.Declared after the verdict, the three have no objection to the housing and all the negotiations : Liu Xu sold to 13,000 yuan.Liu 13,000 yuan houses refund chess, chess and continue to lease a result of all housing.Analysis of two lawyers involved in the case of pre-emption, therefore,theoretical understanding of the meaning of these two is the key to resolving the issue of pre-emption.First, the right of pre-emption lessee, the lessee the right of pre-emption on the housing issue, according to civil law theoryeveryone is entitled to the possession of property ownership, the use of proceeds, the right punishment.According to the will of all these rights can be exercised by everyone I can also be exercised by persons other than the owner.namely, the separation of ownership and empowerment ownership.For example : a custodian can be referred to the custody of property, possession of the lessee can use leasehold.Trust can share in their own name in accordance with the Trust Deed, the disposal of the trust property.Ownership of the separation of ownership and empowerment does not mean all lose, on the contrary,It is separated from ownership to exercise ownership of their own performance.In real life, everyone is separated through the empowerment and resumed play property benefitsto meet their production and daily life.In the lease, the lessor of property rented to others, occupied by others, and themselves to collect the rent.From all angles, this is the way to achieve its ownership from the lessee's point of view, it will meet its production.daily needs.Leasing contract, the right to use the subject matter of the transfer deal with the rental achieve this special commodity exchanges,is not a one-time realization, but gradually, continuing to achieve, within a certain period in exchange process, which lease rental payments,The only period is the increase in the use of "expendable" with the value of housing and other real estate leasing,Although the relationship between the creditors the right to lease real estate debt, but to balance the interests of the parties.and the protection of the weak economy and the relative strength of the party, has the right to a certain extent, ownership,that is, according to the lessee the right to use and can be used to confront others, including rented from the owners of rental from the sale of occasions,Leasing will not be affected.Housing leasing contracts, housing is provided to the lessee to the lessor and the lessee agreed to pay the renttermination of the contract and the lessor's agreement to return to good housing.Housing is a lease contract for the legal contract takes effect, that is the lessee possession and use of the housing.While retaining ownership of the lessor, but some of empowerment ownership separationLessee the right to use it under certain ownership restrictions.Article 118 states : "The lessor selling rental housing, the lessee should give three months notice.lessee under the same conditions, a pre-emptive; Under this provision did not betray housing lessor,The lessee may request the People's Court declared null and void the sale of housing. "This shows that lessees are entitled to the right of pre-emption under the same conditions, is a statutory right to be protected by law.A total of 78 of the right of pre-emption under the Civil Code, paragraph 3 provides that :"According to the total of each property owner the right to demand their share of the pros or transfer. But at the time of sale.there were other people in the same conditions, have priority to buy the rights. "The Supreme People's Court's judicial interpretation also stipulates :"common property,There were one or several sell its share of the property or other property belonging to the original owner or a necessary accessory for the overall,There were other former advocate of pre-emption and should be supported. "There were legal reason given right of pre-emption.The total is based on the total of all relations and total ownership of a legal protection.Because, relationship continues to exist, and there were people there from the exercise of the rights, obligations, in a total of segment,their rights are often abstract objects exist in the entire total, but the relationship was terminated when there were common property,Based on the unique property, there are often inseparable from the particular material, even if there is an inalienable objects,There were parties due to their actions that may affect the other part of the total or to the use of the total receipts,There were no other reliable protection of ownership.Therefore, in order to protect others from the full exercise of the total use of the total proceeds rights, the empowerment to achieve ownership,transfer of property law, the right of pre-emption means to protect their ownership.Which first two options?A total of the lessee and the right of pre-emption right of pre-emption conflict, we should be the priorities?I believe there should be recognized : the right of pre-emption priority, as, for a total,there is the right of pre-emption to protect ownership of the highest effect, and the lessees have the right of pre-emption based on the claims.not have this effect.According to the "right superior claims" principle, the right of pre-emption right of pre-emption greater priority than the lessee.As housing is concerned, a total of the previous form; Once the total transfer housing, the other people there were a pre-emptive.Housing is usually linked to the structure, or the use of matching, it is not easy to separate a whole.There enjoy them right of pre-emption, it is beneficial for housing management, repair, use and ease the lives of the masses.help eliminate contradictions.Specific to the case, the plaintiff accused the sale of housing and housing formerly common property, although separated by the analysis of production, it is still a whole;also nod, still supporting the use of toilet, it is beyond doubt that plaintiff Xu enjoy the right of pre-emption.The defendant, who solicited from 15,000 yuan to the plaintiff, but the price to 13,000 yuan after the plaintiff was not told,actually denied the plaintiff's right of pre-emption and the third lease is based on claims that the plaintiff is based on the right of pre-emption right.right superior claims, without prejudice to a third person living chess by the result of the priority purchase of Housing,housing more conducive to stability and order.
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