중국의 건물임대차제도에 대한 민사법적 고찰

Abstract

With the exchange between China and Korea is active, Korean companies in China often lease building in China to carry out their business. So the understanding of building lease legislation in China is necessary. In China, the building lease legislation is provided in CONTRACT LAW. But in Korea, although the CIVIL LAW is providing about the building lease, legislate the special law - “HOUSING LEASE PROTECTION ACT” and “COMMERCIAL BUILDING LEASE PROTECTION ACT” to protect lessee. The special provision of building lease legislation which provided in China’s CONTRACT LAW is the Article 230 and Article 229. First, China’s CONTRACT LAW Article 230 provides “The lessor intending to sell a leased house shall notify the lessee within a reasonable period of time prior to the sale, and the lessee has the priority to purchase the house under equal conditions”. So Article 230 provides lessee’s priority to purchase right. At the beginning of the legislation, the priority to purchase right is necessary, but it is no more necessary today. And the provision abstract, so it is hard to enforce in judical practice. Therefore several China’s scholars also claim it is need to review the necessity of keeping the lessee’s priority to purchase right. Second, China’s CONTRACT LAW Article 229 provides “A change in the ownership of the leased object within the lease term shall not affect the validity of the lease contract”. This Article called ‘Kauf bricht nicht Miete’. About the ‘Kauf bricht nicht Miete’, if the lessor and lessee make building lease contract legitimately, the contract effect the opposing power directly. So it is need to provide the registration as a requirement of opposing power. Finally, China’s CONTRACT LAW express ‘leased house’, so it is not separate ‘house’ and ‘commercial building’. The commercial building’s feature is not similar with the house. So it is not apposite to apply the same rule to house and commercial building. Meanwhile, in order to regulate the house lease market, the Ministry of Housing and Urban-Rural Development of the People’s Republic of China(MOHURD) proposed “THE DRAFT REGULATIONS ON CONTROL OF HOUSE LEASE AND SALES” on May 19, 2017. But the regulations in DRAFT is not different with existing regulations, so it is hard to settle the problem basically.