商事租赁优先承租权法定化研究

On Legalization of Priority Lease of Commercial Lease

优先承租权目前在我国没有明确法律规定,主要以当事人约定为主,司法实践中裁判标准不统一导致出租人权益不能得到保障,不利于交易安全。学界主流观点认为优先承租权是一种物权化的债权,但优先承租权实则是一种民事优先权。商事租赁关系中营业资产的积累使承租人面临巨大的风险,法律有必要对其进行特殊规制。在商事租赁关系中优先承租权应该成为一种法定权利,在立法上应对优先承租权的行使条件、行使期间、救济方式等做出明确规定。

There are no specific legal provisions on the right of priority leasing in our country. In the judicial practice, the standard of referee is not unified, which can not guarantee the rights and interests of the lessor. The prevailing view of the academy is that the fight of first tenancy is a kind of creditor＇s rights, but the priority of tenancy is actually a kind of civil priority. The accu- mulation of business assets in a commercial lease relationship puts the tenant at great risk, and it is necessary to regulate this action in a special way. In the commercial leasing relationship, the right of first leasing should be a kind of legal fight, which should be clearly stipulated in the legislation, such as the conditions of exercising the right of priority leasing, the period of exercising and the way of relief.