Study On Preemptive Right System

As an important rule of Civil Law, the value of the preemptive right shouldaccord with the value of the modern Civil Law. Therefore, the value of the preemptiveright in the modern Civil Law shall include the following aspects: the design andexplanation of the preemptive right should be consistent with the operation of theethic of the contact and the justice of private law in order to protect the security of thedynamic legal relationship of property. However, the system goal is difficult toachieve and preemptive rights disputes are also difficult to be solved, due to theweakness of basic theory research and imperfectness of legislation. Under thisbackground, the article hopes to clarify the theory, and improve the legislation andjudicial practice in the future through the systematic and in-depth research of the basicprinciple and institutional arrangement of preemptive right.Besides the introduction and conclusion, the article is divided into five parts. Themain content is as follows:The first part is “Summary of Preemptive Right System”. In writer’s opinion, itis necessary to set up the framework and platform of discussion on the study of thepreemptive right system. That is divided into normal state and abnormal stateaccording to whether the seller performs the duty of the legal notice or not. Afterdemonstrating the access and necessity of the normal state, the writer points outthat the aim of preemptive right system will probably come true as long as the sellerperforms the duty of the legal notice without having to "activate" preemptive rightsunder the normal state. On the other hand, the aim of preemptive right system willprobably come true depending on the active performance of preemptive right whenthe seller does not perform the duty of the legal notice under the abnormal state.Finally, based on the analysis the basic type of preemptive right, according to thecausation of preemptive right the writer differentiates the statutory preemption frompreemption-in-will.The second part is “Value of Preemptive Right System”. This article argues thatthe value of preemptive right system contains two aspects: one is the reflection ofvalue which mail role is to discover the legitimacy of the system, and it is on the tensefor "past" or "present continuous tense"; The second is pursuit for value which alwaysseeks for the security in transaction security and substantial justice. Therefore thetheory building and the design of the system should be fit with it, and it is on the tensefor "future".The third part is “Legal Nature of Preemptive Right”. First of all theintroductions and comments related to the legal nature of preemptive right is given,and the writer considers that the theory of contingent right, property right, creditor’s right and contingent right with condition cannot disclose the legal nature ofpreemptive right completely, and then the writer points out the legal nature ofpreemptive right shall defined as right of formation, because not only the inherentmeaning of preemptive right accord with the intension of right of formation, but alsothe functions of preemptive right matches the functions of right of formation. Thirdly,the effect mechanism of the legal nature of preemptive right is deep analyzed, that ispreemptive right only confirms the purchase contract relationship between thepreemptive right holder and the seller and it cannot directly result in the property ordebt relationship.The fourth part is “Establishment and performance of Preemptive Right”. Thereare two different aspects of preemptive right system between the establishment andthe performance of preemptive. The establishment of preemptive means that the sellershould bear the duty of legal notice when he (she) intends to sell the object. But theperformance of preemptive right is based on an opposite way. In respect of the rulesof preemptive right, the writer mainly discusses the conditions, time and way ofexercise of preemptive right under the abnormal state.The fifth part is “Legal Performance Effect of Preemptive Right”. The articledeems that after establishing the legal relationship of trade between parties byexerting preemptive right, the function of preemptive right as technic and instrumentalright is realized and it doesn’t influence the legal effect of preemptive right directlywhich embodies the legal effect producing by the trade contract making by thepreemptive right holder and obligor. In the second part, the writer analyzes the legaleffect of preemptive right. The legal effect of preemptive right is as following: thepreemptive right brings the function of the right of formation into play after beingexerted that is creating the trade contract between the seller and the preemptive rightholder and producing the effect of trade contract debt. The article discusses the casesof real right alternation basing that. The writer puts forward that giving thepublication means in sense of real right law to the existence of preemptive right, sothat the legal effect producing after the preemptive right is exerted can defense thethird party. The countermeasure protecting the benefit of preemptive right holder bythe publication in sense of real right law has the peculiar function which the remedyin debt law can’t obtain. At last, the writer points out the conflict with differentpreemptive right, especially analyzes how to deal with the conflict between co-ownerand lessee.