Research On Preemptive Right System

Preemptive right system dates back to the time of Roman. During theperiod from the Middle Ages to the Renaissance, Roman Law gradually becamethe common law of Latin and German nations. Since the establishment ofnational countries, some principles and systems of Roman Law have beenaccepted by civil codes of nearly all the countries, among which, thesystem of preemptive right is an important one.Although having a considerably long history and being stipulated moreand more sophisticated, the preemptive right system still has some of itsfundamental theoretical matters unsettled. The author has discreetlychosen several focuses points that scholars have been debating fiercelyon, to do research into and propose her opinion. With great effort, theauthor has accomplished this comprehensive and systematic paper onpreemptive right system, in which she, by studying the relativeregulations of other countries and that of China together with China'scurrent practices on preemptive right, makes suggestions to perfectChina's legislation in this aspect. The main body of this paper, withover 30,000 words totally, is divided into four chapters:The first chapter, by means of comparative law, introduces thelegislative situation of preemptive right in many countries (civil law countries mainly), including the relative regulation of France,Switzerland, Japan and especially that of Germany which is considered veryrepresentative in this field, with an intention to help China choose amore suitable model of preemptive right system. Meanwhile, thedevelopment history of preemptive right system in China and differentsocial values of the system in different historical periods are alsointroduced.The second chapter discusses the fundamental theories of preemptiveright including the definition, character, establishment and exercise ofpreemptive right. The discussion on preemptive right's definition setsa basis for all the later series of discussion. On this basis, the authoruses many words to discuss the character of preemptive right andpersonally regards it as a right of formation, in other words, a rightwhich enables the right holder to cause the formation of a contract ofsale between himself and the preemptive right obligor with his owndeclaration of will.An innovation point in this part is that, instead of simplyintroducing different kinds of theory on the character of preemptive right,the author moves on to analyze whether they are right or wrong in awell-knit logical way. As regard to the theory of effect of real rightand effect of claim, the author, by penetrating into the preemptive rightsystem in German law (to be specific, the special division of real rightpreemptive right and claim preemptive right) thinks that, it is thequestion whether preemptive right should antagonize the third party thatdeserves discussion. The author' s answer to this question is that, theantagonism of preemptive right depends on whether it obtains publicsummons.After discussing the character of preemptive right, the authorcontinues to look into other theoretical and practical matters of preemptive right, including the establishment, the period of exercisetime, the scheduled period and the exercise of preemptive right in auctionprocess etc. and makes legislative suggestions on them.Chapter three introduces the preemptive right of co-owners andpreemptive right of lessee in detail. In this part, the author points outsome flaws in China's current legislation on those two kinds ofpreemptive right and gives her suggestion in dealing with preemptive rightof former common-owners after the division of property in common and thatof second lessee. Besides, the author also discusses the relationshipbetween preemptive right system and the system of sales not devastatinglessee, which has always been neglected by others. In her opinion, thereis no conflictbetween these two systems and both have a unique value thatis irreplaceable.Chapter four concentrates on the concurrence of several preemptiverights and different dealing principles of specific situations. In thispart, much emphasis is placed on the relationship between preemptive rightof several co-owners and that of the lessee. In the author's opinion,with different subject matters and different happening time, these twopreemptive rights can not concurrent with each other at all.