Study On Preemptive Right

Preemptive right, which is also called right of first refusal, is a system with long history and great impact. The design and explanation of the preemptive right should be consistent with the operation of the ethic of the contact and the justice of private law; which should emphasize particularly on the protection of the security of transaction, and even cost the static legal relationship of property in order to protect the security of the dynamic legal relationship of property.The article is divided into five parts:In the first part"summary of Preemptive right", the writer firstly introduces by the legislative situation of preemptive right in the Civil Law countries by the means of comparative law. Secondly, the writer introduces the general definition of preemptive right that is according to the agreement between parties or provisions of law, when the seller the object the preemptive right holder shall have the preemptive right to purchase the object in the same conditions. However the writer considers the general definition of preemptive right unilateralist, which cannot contain the inherent meaning of preemptive right, and it is necessary to clarifies the inherent meaning of preemptive right. The following aspects the preemptive right shall be included. On the one hand, the law requests the seller to perform the obligation and provides the preemptive right holder choice whether exercise the preemptive right, which is the normal state. On the other hand, when the seller does not perform the obligation of information, the preemptive right holder may seek for the statutory compensations, which is the unusual state. In the unusual state, the seller contacts with others without informing the preemptive right holder, after obtaining such information if the preemptive right holder accepts the same conditions to purchase the object, the law provides the compensations for the preemptive right holder.In the second part"Legal Nature of Preemptive Right", first of all the introductions and comments related to the legal nature of preemptive right is given, and the writer considers that the theory of contingent, property right, creditor′s right and contingent right, property right, creditor′s right and contingent right with condition cannot disclose the legal nature of preemptive right completely, and then the writer points out the legal nature of preemptive right shall defined as right of formation, because not only the inherent meaning of preemptive right accord with the intension of right of formation, but also the functions of preemptive right matches the functions of right of formation.In the third part"Legal Effect of Preemptive Right", in the first part, the writer gives the definition of preemptive right.The article deems that the logic starting point of the legal effect of preemptive right is the exertion of preemptive right. After establishing the legal relationship of trade between parties by exerting preemptive right, the function of preemptive right as technical and instrumental right is realized and it does not influence the legal effect of preemptive right directly which embodies the legal effect producing by the trade contract making by the preemptive right holder and obligor. The article discusses the cases of real right alternation basing that. In the third place, the writer points out the conflict with different preemptive right, especially how to deal with the conflict between, the co-owner lessees. In the fourth part"The conflict and balance of preemptive right". Preemptive right can be applied in many legal relationships, in practice, there is a chance that one subject has several preemptive rights, then those obliges will claim their preemptive rights at the same time, here comes the conflict. How to deal with this conflict? There is no specific regulation in civil law corresponding to this situation. With careful analysis, the writer gives its opinion: when the lessee has conflicts with the preemptive right of co-owners, the right of lessee has been fully guaranteed, the co-owner may not even the annul the contract even they have the ownership, they must not against the leasehold, therefore, the preemptive right of co-owners is preferential than the lessee. When the conflict occurs between the co-owners and the preemptive right of co-owners, in the writer's opinion, the best way is that the seller makes the decision of which buyer taking the purchase. In this way, they can reduce the dealing cost, at the same time, the seller is guaranteed the options right which can chose the buyer as its will under the situation of same preemptive right.In the fifth part"preemptive right in our future civil law". First, it gives a comprehensive discussion and suggestion of the applicability and shortage in which preemptive right has been applied in our civil law. This will use the applicability of foreign civil law for conference. Second, it analyses the value of preemptive right in the view of order and efficiency. Third, it discusses the obvious conflict of"equal condition"and"time of exercise of preemptive right"in details, which are the major components of preemptive right. Then, a preparatory frame and reform of our civil law are made in conference of foreign law. Fourth, taking a complex case of which several lessees claim their preemptive right at the same time as an example, it indicates the limitation of our civil law about preemptive right, there is no clear prescription how the obliges using their preemptive right. As the judicial organs, the court has not a consensus of the understanding and applicability in preemptive right; thus, it's very difficult to deal with the cases relating to preemptive right in practice. To solve this problem, the writer gives a solution and theory constitution, therefore, our future civil law will grow with integrity.In the conclusion chapter, the writer makes an innovative plan about the position of preemptive right in our future civil law, basing on the status of our country.