论房屋承租人优先承租权的适法困境与纾解

On the Dilemmas and Resolutions Regarding the Legality of the Lessee’s Priority in House Leasing

房屋承租人优先承租权应界定为形成权。优先承租权制度在司法实践中面临的困境主要包括出租人是否继续出租的意愿难辨别且可变动、同等条件难把握且易延展和救济乏力。对此,可以从明确行权期限、限缩“同等条件”和拓展救济路径着手进行纾解。明确行权期限使出租人的主观意愿受到客观规制。“同等条件”的认定采“相对同等说”,在租金、支付方式和租赁期限上保持绝对的同等,其余因素则以社会一般人的标准判断是否显著影响出租人经济利益和是否真实合理从而决定是否保持同等。该权利作为形成权具有不可侵性,行权后仅有相对效力,承租人在合法占有房屋或已经办理登记备案手续时有程序法上的履行合同优位;当出租人履行其与第三人的租赁合同时,承租人因履行基础丧失而无法要求继续履行,但可以主张赔偿损失。

The lessee's priority in house leasing should be defined as the right of formation. The dilemma of priority in house leasing in judicial practice mainly includes the difficulty and unpredictability in discerning the lessor's willingness to continue renting, the difficulty in grasping equivalent conditions, its tendency of expansion, and the inadequacy of relief. In view of this, possible resolutions may stem from clarifying the exercise period, refining “equivalent conditions”, and expanding the methods for relief. It is necessary to clarify that the defined exercise period of the priority in house leasing objectively regulates the lessor's subjective will. And the determination of “equivalent conditions” should follow the “relative equality theory”, maintaining absolute equality in rent, payment methods, and lease duration. Other factors should be judged based on standards of ordinary people in society to determine whether they have a significant impact on the economic interests of the lessor and whether they are true and reasonable, to further determine whether equality should be maintained. The priority in house leasing, as a right of formation, is inviolable and has only relative effect after being exercised. The lessee has the priority of performing the contract as stapulated in procedural law when legally occupying the house or after having gone through registration and filing procedures. Meanwhile, when the lessor performs his lease contract with a third party, the lessee is unable to demand further performance due to the loss of performance basis, but is entitled to seek compensation for incurred loss.