“买卖不破租赁”规则适用条件研究

发布时间：2018-03-30 17:36

本文选题：买卖不破租赁　切入点：适用条件　出处：《上海社会科学院》2017年硕士论文

【摘要】：一般认为,适用"买卖不破租赁"规则至少应当具备如下条件:租赁合同有效、所有权的变动发生在租赁期间内及承租人愿意继续履行原租赁合同。然而,我国除了《合同法》第229条对"买卖不破租赁"规则如何适用以及产生的法律效果进行阐述以外,对该规则没有更多的立法规定。上述三个适用条件具体为何值得探究。本文以此为线索,探究"买卖不破租赁"规则的适用条件问题,希冀该规则能够在司法适用中发挥其真正的价值。第一章是"买卖不破租赁"规则的概述,简述该规则的渊源、评析我国对该规则的适用状况,认为我国关于该规则的适用条件不够明确,总结主要存在的三个问题:租赁合同是否需要满足一定公示条件、不同方式的所有权变动是否均能适用该规则,以及何为该规则中的"承租人"。下文将对这三个问题分别进行详述。第二章针对"买卖不破租赁"规则适用条件之"租赁合同有效"进行分析,认为该规则中租赁合同的有效性有别于一般的租赁合同,其有效性意指产生了对抗所有权转让合同的效力,故以租赁物的"占有"为公示要件。第三章针对"买卖不破租赁"规则适用条件之"发生在租赁期间内的所有权变动"进行分析,认为适用该规则必然要求所有权发生变动,然而所有权的变动有多种方式,如,因法律行为引起的所有权变动与因公法行为引起的所有权变动,是否均可作为该规则的适用条件值得进一步讨论。第四章针对"买卖不破租赁"规则适用条件之"承租人愿意继续履行原租赁合同",研究承租人的涵义以及承租人意思表达的方式等问题,特别是部分租赁或共同租赁的承租人如何适用该规则的问题。第五章为结论与建议。我国"买卖不破租赁"规则的立法目的是保护承租人利益,其实质则是意思自治的体现。关于该规则的适用条件,一是以租赁物的"占有"为公示要件,二是需要区分所有权变动的类型,三是承租人意愿方面,承租人的内涵和外延以及继续租赁的意思表达方式均具有特殊性。
[Abstract]:It is generally believed that the application of the "sale and purchase unbroken lease" rule should at least meet the following conditions: the lease contract is valid, the change of ownership takes place during the lease period and the lessee is willing to continue to perform the original lease contract... however, In addition to Article 229 of the contract Law, this article expounds how the rule of "buying and selling unbreakable lease" applies and the legal effect it produces. There are no more legislative provisions on this rule. Why the above three conditions of application are worth exploring. This paper takes this as a clue to explore the applicable conditions of the rule of "buying and selling without breaking the lease". It is hoped that the rule can play its true value in the judicial application. Chapter one is an overview of the rule of "buying and selling unbreakable lease", a brief description of the origin of the rule, and an assessment of the application of the rule in our country. The author thinks that the applicable conditions of this rule are not clear enough in our country, and summarizes the three main problems: whether the lease contract needs to meet certain publicity conditions, and whether the rules can be applied to all kinds of ownership changes. And what are the "lessees" in the rules. These three issues will be discussed in detail below. Chapter two analyzes the validity of the lease contract under the applicable conditions of the "sale and purchase unbroken lease" rules. Considering that the validity of a lease contract in this rule is different from that of a general lease contract, and that its validity implies that it has the effect of counteracting a contract of transfer of title, Therefore, taking the "possession" of the lease item as the public notice, the third chapter analyzes the "change of ownership during the lease period" of the applicable conditions of the rules, and concludes that the application of the rules necessarily requires a change of ownership. However, there are many ways to change ownership, such as the change of ownership caused by legal act and the change of ownership caused by act of public law. The fourth chapter studies the meaning of the lessee and the lease in view of the "lessee willing to continue to perform the original lease contract" in the light of the applicable conditions of the rules of "buying and selling unbroken lease", and studying the meaning of the lessee as well as the lease. How people express their meaning, The fifth chapter is the conclusion and suggestion. The legislative purpose of the rule is to protect the interests of the lessee. The essence of this rule is the embodiment of autonomy of will. As for the applicable conditions of this rule, one is that the "possession" of the lease item is the public element, the other is the need to distinguish the types of the change of ownership, and the third is the intention of the lessee. The connotation and extension of the lessee and the expression of the intention of the continued lease have their particularities.
【学位授予单位】：上海社会科学院
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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