论房屋承租人优先购买权的行使——以《民法典》第726条为中心

On Exercising of Lessee’s Preemption Right: Focusing on the Article 726 of “PRC Civil Code”

承租人优先购买权的行使主体仅指居住用途的承租人,不包括商业用途的承租人。行使前提是出租人出卖租赁房屋给买受人,出卖也包括抵押权实现中的变卖、折价、拍卖和破产财产的拍卖及法院强制执行的拍卖,而买受人不能是出租人的近亲属。行使条件是同等条件,不仅房屋价款、支付方式等相同,承租人还应额外支付一定比例的房屋价款。行使期间为出租人在与买受人订立租赁房屋买卖合同之后的3日内通知承租人,承租人应当在接到通知的15日内行使。行使后果是出现双重买卖,但出租人只能向承租人履行,且无需向买受人承担违约责任。

The lessee’s exercising preemption right only refers to the lessee for residential purposes and does not include the lessee for commercial purposes. The foundation of exercising is that the lessor sells the rental house to the third party, and the sale also includes the realization of the mortgage in the sale, discount, bankruptcy property auction and the auction enforced by the court, and the third party couldn’t be lessor’ close relative. The condition of exercising is equal condition, which means not only the house price and payment method is same, but also the lessee should pay an additional percentage of the house price. The period of exercising is that the lessor notices the lessee within 3 days after the establishment of the rental house sales contract with the third party, and the lessee shall exercise within 15 days after receiving the notice. The consequence of exercising is a dual sale, but the lessor should only perform to the lessee and needn’t compensate the third party.