承租人优先购买权法律性质研究

A Study on the Legal Character of Lessee's Pre-emption Right

在中国现行法律体系中,优先购买权为债权性权利,权利人行使权利,意味着取代原始要约人(第三人)地位而成为要约人,其法律性质为要约地位取代权。第三人受出卖人优先购买权人行使优先购买权通知后,可以发出新要约,权利人对之仍可行使要约地位取代权,直到最终缔约。出卖人侵害承租人优先购买权,应当区别第三人是否善意。在善意第三人情形下,优先购买权人只能向出卖人主张违约或侵权损害赔偿责任;在非善意情形下,除出卖人与第三人房屋买卖合同无效情形下,出卖人与第三人对优先购买权人权利损害,应当承担侵权损害赔偿责任,且为连带责任。

In current legal system of China, pre-emption right is the right of credit. Exercise of the right means the right holder will take the place of original offeror（ the third party） , and that turns into the right of replacing offer in terms of legal nature. Even after the third PartY is informed about pre-emption right and makes new offers, the right holder can still enjoy the right of replacing offer until the contract is dealt. Besides, in cases of lessee＇s pre-emption right being infringed by the seller, whether the buyer （ the third party） is in good faith should be taken into considera- tion. If the buyer acts in good faith, the obligee of pre-emption right can only claim the seller for breach of contract or infringement compensation and responsibility. Otherwise, the seller and the third party are legally supposed to be lia- ble for the damages caused by the tortious conduct, which is joint and several liability either, unless the contract be- tween the seller and the third party is invalid.