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Research Of Some Issues On Preemption

Posted on:2005-08-29Degree:MasterType:Thesis
Country:ChinaCandidate:Y Z CaoFull Text:PDF
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Preemption, as a major civic institution, originated from a remote history, which, at home and abroad, has been stipulated by laws. It, with many types and different natures, has been stipulated in many legal documents. However, the stipulations are crude , curtness and lack of manipulation, which leads to ambiguity in judicial practice. Preemption, in academia, has been argued heatedly, but all of this is still to be deepened. Therefore, further research of preemption is of great meaning in theory and in practice.Preemption, evolved from Redeemable rights of forever rent rights in Rome laws, which developed into a major civic legal institution in modern civil law nations, especially specified in German civil code. But in common law nations, it is only stipulated in commercial laws, such as in corporation law. Preemption, in China, was originated in middle- tang dynasty, and greatly developed in Song, Yuan dynasty, and gradually into a legal institution. Preemptions, in Ming, Qing dynasty, stipulated by clan law, are existed in the form of customs and finally was restated and absorbed by law in the end of Qing dynasty. Preemption, as an ancient institution, was acquired by the laws of People's Republic of China, and then a few types were created. Preemption, through comparative study in legal history at home and abroad, has quite different in historic processes, concepts, force ad effect.Scholars have quite different opinions on the nature of preemption. In this paper, the author analyzed the following theories: the theory of petition, of formation, of expectation and of creditor's rights or real rights, and drew a conclusion that preemption is not petition right, but a expectation right, a conditional formation right;The author also deems that it should be granted with force ad effects of real rights.In China, there is no systematic and general stipulations on preemption in relative laws, but there existed a lot of types of preemptions in many low-ranking laws, statutes and judicial interpretations. The author claims that preemptions of tenant, co-owners , shareholders should be withheld and consummated. On the contrary, preemptions of pawnbrokers , of housing reforming , of government's state-owned land use and government's rights to purchase its citizen-owned cultural relics be handed down from ancient times, should be weeded out because they are lack of existing bases and values.The acting conditions of preemption are one of problems discussed by scholars, and their argumentations are quite different. In this paper, the author analyzed it in three aspects: the first is its essential constituents. According to Chinese law, preemptions will be executed under the same conditions; however, scholars have quite different opinions about what the same conditions is. The author claims that the same conditions, except for the same prices, we should take three factors of German civil code into considerations; the second is its time limit constituents. The author claims that when the seller sales his property, he, with no concrete time limit, should notice preemption-holder. Preemption should be executed in a month after being noticed; otherwise, the seller sells his property to the third party without noticing the person with preemption, the person with preemption has the right to petition court to revoke the sale relations between vendor and the third party. The time limit is one-year period, which starts from preemption-holder knows or should know it; the third is its formal constituents, which should be based on animus; the fourth is its prohibitory constituents. At following case, the preemption not be executed: (a) it is propitious to commonality benefit of society when the property is requisitioned for or sold by state; (b)when the property is auctioned or invited public bidding or traded in: (c) when the property is conferred or bequeathed or inherited; (d) the preemption not be inherited and transferred.The legal effect of preemption includes the following: the effect to sellers , preemption-holders and the third pa...
Keywords/Search Tags:preemption, historic reservation, selection of legislation, Remedy measure
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