The Preemption In Ancient China's Restriction To The Freedom Of Contract

The preemption in ancient China is a procedure of concluding contract that the owner of real estate must notify and inquire his relatives and neighbors before he sell the real estate to other people. The procedure restricts the owner's contract freedom. The first chapter analyzes the phenomenon of the preemption in ancient China and the history of the contract freedom on the base of the theory of civil law. The author wants to disclose the delicate relation between the preemption and the contract freedom. It will find a correct path of the legislation in morden China after using the legislation in west for reference. The preemption has a long history in ancient China. The second chapter cleans up the unorderly historical data and gets a advancing thread according to historical format. The author wants to demonstrate the reason of the preemption's occurring, maturity, and dying out in the ancient Chinese law. Some new viewpoints are put forward. According to the current threoy, the preemption in ancient China is a legal custom in the traditional society resulting from the clanism idea. But according to the author's opinion, the reason why the legal custom has been integrated into the official legislation in a transition phase of Tang empire to Song empire is that the government has wanted to restrain the trend of the soil's annex. The third chapter sets forth the function of the preemption in ancient China. The author wants to explore the thereunder of the preemption's long existing in ancient China. The forth chapter analyzes the methods how the law conciliates the conflict of interests between owners and their relatives or neighbors. The author believes that the expanding of the contract freedom is a inevitable trend in our society. After the Qing government made over its law in 1910, the ancient Chinese law system has been collapsed completely. The fifth chapter deeply reviews the civil law in 1910 to 1949. The author believes that to unilateral pursue the social public interest is a legislative limitation in morden China. The most serious problem in regulating the preemption is the right's substantial attribute that can result in the inefficacy of any contract concluded by the owner and the third party. It will restrict the contract freedom and destroy the business security. The author thinks that the preemption's attribute should be creditor's rights in order to cultivate the citizens'idea of contract freedom. The mission of historical investigation is to provide a academic support with the morden society's decision-making. The sixth chapter deeply reviews the civil law since 1949 and set forth two opinions. The one is that the civil law should regulate the preemption in order to accommodate the market of real estate. The other is that the preemption's attribute must be creditor's rights in order to cultivate the citizens'idea of contract freedom.