承租人优先购买权的损害赔偿研究

On Compensation for the Damages of Tenant's Preemption

我国民事立法中关于优先购买权的规定不多,但一直规范有房屋承租人的优先购买权。不过,多数规定只是对承租人优先购买权的确认,该权利的行使及受到侵害后的救济措施却很不明确。最高人民法院《关于审理城镇房屋租赁合同纠纷案件具体应用法律若干问题的解释》中,虽然规定侵害承租人优先购买权的,承租人可以请求损害赔偿,但如何赔偿没有加以明确。承租人优先购买权是具有债权性的形成权,形成权具有可被侵害性,因此,在法律规定的合理期限内未通知承租人导致优先购买权不能行使、行使优先购买权的意思表示过程中受到不合理阻碍、优先购买权行使后导致该权利目的落空的,都构成对承租人优先购买权的侵害,应当承担相应的损害赔偿责任。

Provisions about preemption are not many in our civil law, but there are a lot of that about tenant＇s preemption. However, many provisions only confirm tenant＇s preemption, how to enjoy this right and the remedy measure after this right being trespass have been formulated unclearly. In the Judicial Interpretation[ 2009 ] No. 11, there are some provisions that if tenant＇s preemption has been trespassed by other people, the tenant should claim for damages. While this Judicial Interpretation has not explicitly stipulated how to compense. Tenant＇s preemption is right of formation with quality of creditor＇s rights,and right of formation can be trespassed. So if the lessor had not notified the tenant he would sell that leased property before a reasonable time limit specified by law,if the tenant＇s declaration of intention had been hindered unreasonably by some people and if the lessor＇s behavior had insulted frustration of purpose of tenant＇s preemption after that preemption had been executed, are all invasions into the tenant ＇s preemption, the inflictor shall bear corresponding responsibility for compensation.