试论房屋租赁中法定优先承租权

On Legal Priority in House Leasing

房屋租赁中法定优先承租权是《中华人民共和国民法典》合同编中新增设的法定权利,其性质应解释为附条件的形成权。具体适用时,需要着重关注房屋租赁中法定优先承租权的行使条件和例外情形。对“同等条件”的判断应采用限缩解释,将租赁价格、租赁期限、履行方式、履行期限这四类合同条款明确作为判断“条件”,其他合同条款则应由出租人提出主张和举证,由法庭视情况自由裁量;除“同等条件”之外,行使条件的内容还应包括存在一年以上合法有效的租赁关系、出租人继续出租房屋且已与第三人成立合同以及承租人在合理期限内行使权利。公开竞价招租、轻资产住房租赁企业从事转租业务和承租人违约这三种情形则可以构成优先承租权行使的例外。

The right of legal priority in house leasing is a new legal right in the contract part of the civil code of the People’s Republic of China, and its nature should be interpreted as the right of formation with conditions.In specific application,we need to pay attention to the exercise conditions and exceptions of legal priority in house leasing.The judgment of “equal conditions” should be interpreted in a restrictive way,with the lease price, lease term,mode of performance and term of performance clearly taken as the judgment “conditions”,while other contract terms should be claimed and proved by the lessor,which shall be at the discretion of the court as the case may be;In addition to the“same conditions”,the exercise conditions shall also include the existence of a legal and effective lease relationship for more than one year,the lessor continues to lease the house and has established a contract with a third party,and the lessee exercises its rights within a reasonable period of time.Public bidding for rent,asset light housing leasing enterprises engaged in sublease business and the lessee’s breach of contract can constitute exceptions to the exercise of priority lease.