土地租赁协议续期:理论与司法实践问题

V. Urkevych
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引用次数: 1

摘要

土地是环境中最重要的客体。它是农业中不可缺少的生产资料,是各种物体定位的地域基础。土地租赁关系的正常运行是经济持续流通的保障,是土地出租人和承租人行使权利和履行义务的保障。土地租赁协议期满后续期的问题是有争议的。这项研究的目的是概述现时有关土地契约续期的理论及执法问题,并提出建议以消除后者。为了达到这一目的,采用了一种系统结构的科学知识方法,这有助于分析土地租赁协议续期立法的规定,并强调了它们之间的关系和相互作用。研究证明,承租人优先续签土地租赁协议的权利仅在出租人不反对续签土地租赁协议的情况下,以相同的期限和条件续签土地租赁协议。如果承租人试图改变土地租赁协议的基本条款,在没有出租人同意的情况下,承租人优先签订新期限土地租赁协议的权利被终止。需要强调的是,在每一宗纠纷中,都有必要确定出租人拒绝与一人(承租人)续签土地租赁协议以及随后与新承租人签订协议的行为的诚信。在土地租赁法律关系中使用“受保护程度较低”的一方似乎是有争议的,因为根据这些法律关系当事人的主体构成,这样的一方既可以是承租人,也可以是出租人。结论是,最高法院应统一适用土地租赁协议续期法律规定的实践(仅与其他法规结合或自主适用,采用“默许”原则)。乌克兰法律“关于修改乌克兰关于反击突袭的某些立法行为”的规定表明了自主适用这种指示的可能性。揭示了我国土地租赁协议期满后续期法律规制的不足,为我国土地租赁立法的完善指明了方向,具有现实意义
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Renewal of the Land Lease Agreement: Problems of Theory and Judicial Practice
Land is the most important object of the environment. It is an indispensable means of production in agriculture, the territorial basis for the location of various objects. It is argued that the proper functioning of land lease relations is a guarantee of sustainable economic circulation, a guarantee of the exercise of rights and performance of duties by both the lessor and the lessee of the land. The issue of renewal of the land lease agreement after its expiration is debatable. The purpose of the study is to outline the existing theoretical and law enforcement problems regarding the renewal of the land lease agreement, to make proposals to eliminate the latter. To achieve this purpose, a system-structural method of scientific knowledge was used, which helped analyse the prescriptions of the legislation on renewal of the land lease agreement, their relations and interaction were highlighted. The study proves that the lessee's pre-emptive right exists to renew the land lease agreement only for the same period and on the same terms and in the absence of objections to such renewal by the lessor. If the lessee tries to change the essential terms of the land lease agreement and in the absence of the lessor's consent to such changes, the lessee's pre-emptive right to enter into a land lease agreement for a new term is terminated. It is emphasised that in each dispute it is necessary to establish the good faith of the lessor’s actions to refuse to renew the land lease agreement with one person (lessee) and the subsequent conclusion of the agreement with the new lessee. The use of the category of "less protected" party in land lease legal relations appears debatable, because depending on the subject composition of the parties to these legal relations, such a party can be both a lessee and a lessor. It is concluded that the Supreme Court should unify the practice of applying the provisions of the law on the renewal of the land lease agreement (only in combination with other regulations or autonomously, with the use of the principle of "tacit consent"). The possibility of autonomous application of such instructions is indicated by the provisions of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Concerning Counteraction to Raiding”. The revealed shortcomings of the legal regulation of the renewal of the land lease agreement after its expiration indicate the directions of improvement of the legislation in land lease, which has practical significance
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