Analysis Of Pre-Emptive Right Issues

Pre-emptive right usually refers to specific civil subject based on law regulation and contracted terms. When seller sells target thing and 3re person, they has prior emptive right to others under the same condition. This system can be dated back to Ancient Greece, Roman times and Tang Dynasty, Five Dynasties Period in feudal society of our country. During the developing and evolutionary process, it plays positive effect on stable economic order, improve trade effectiveness, promote social equality, and other aspects. Our active civil law, legislation and judicial interpretation still have related regulations on this system. Yet as a result of over simple and general regulation, operability is not strong. On the basis of indicting necessity of pre-emptive right, this paper analyzes several major issues of pre-emptive right in theory and puts forward view of this paper. Paper tries to further improve this system and help guide judicial practice in order to fully guarantee client's lawful rights in judicial practice.The paper is divided into following four parts: disposal of Pre-emptive right, legal nature of pre-emptive right, solution of pre-emptive right's effectiveness conflict and essentials of pre-emptive right's exertion.The 1st part is disposal of Pre-emptive right. It introduces that our scholars have abandonment saying and preservation saying on pre-emptive right. Abandonment saying advocates that pre-emptive right has made unreasonable limit to seller's ownership and acknowledges that pre-emptive right harms to trade and encouraging trade; while preservation saying advocates that setting of pre-emptive right system is good for stability of social relations, property order, and it has effective value, simplifies relation for real thing and benefits max limit of giving full play of thing's effectiveness. Then, the existence of pre-emptive right is justified reasonably, which illustrates the real meaning of pre-emptive right's existence. Above mentioned comply with our traditional habits and values and benefit to improve social harmony. Legal basis existing in pre-emptive right is pointed as that its system both complies with ideology of equality, free and justice and effective concept. It also defines application of pre-emptive right under the same condition, but seller won't suffer in public relation by this limit. Further, it advocates that, disposal of pre-emptive right could not stand in court, which proofs the reasonableness and necessity of scale'existence. Preservation and improvement of pre-emptive right system be in conformance with the developing trend of any country's law and demands of our social economic development. The 2nd part is legal nature of pre-emptive right. Pre-emptive right of our active law is main official one. By introducing and analyzing our scholar's typical saying on legal nature of pre-emptive, this part justifies legal nature of pre-emptive right on the basis of including collision between awaiting saying and vested saying, collision between forming right (forming right enclosed conditions) saying and requesting right saying, collision between real right and obligatory right. From jurisprudence view the author thinks that, as selling any property without the same conditions pre-emptive right can enjoy profit, that is awaiting right not vested right; pre-emptive right is that pre-emptive righter received one party's meaning and forms the same contract content as sales contract between obligor and 3rd person but needless promises of obligor (that is seller) so pre-emptive right is forming right not request right;Official pre-emptive right can't depart from its additional basic relations and now pre-emptive right is real right, which can be enclosed debt relations, not obligatory right.The 3rd part is solution of pre-emptive right's effectiveness conflict. It begins with introduction to one case, which arose two problems to be discussed in the chapter common pre-emptive right conflict among judicial practice. It mainly covers how to properly coordinate conflicts (competition) among pre-emptive right of co-owners and between co-owners and renters. When conflicts occur among pre-emptive of co-owners, on shares theory circle and overseas legislation enjoy pre-emptive right saying, co-owners'joint exertion saying, determining saying up on seller, max share pre-emptive saying, other pretension. This paper agrees with determining saying up on seller and points out drawbacks of other three pretensions. Seller should select vendee, which both can decrease transaction cost and balance interests between seller and pre-emptive righter to avoid dispute among co-owners. When pre-emptive right of co-owner and pre-emptive right of renter have collision, there are pre-emptive saying of co-owner and pre-emptive saying of renter in rationality. Yet based on Mr. Xie Zhesheng's legal economics analysis method, this paper achieves to persist the value of when two benefit meet together, select more important one to balance. Then it derivates pre-emptive right of co-owner is prior to pre-emptive right of renter. Pre-emptive right of co-owner and pre-emptive right of renter can completely compete.The 4th part is essentials of pre-emptive right's exertion. For essentials of pre-emptive right's exertion, there are issuing points, such as same condition and definite limit among scholars. One, it introduces two saying with the existence of same conditions as exerting pre-emptive right. They are absolutely equal saying and relatively equal saying. Absolutely equal saying holds that purchasing conditions of pre-emptive righter is absolutely same and same as other vendee's condition; while relatively equal saying holds that once conditions are general the same, righter can exert pre-emptive right. Two, is analyzes two sayings and holds that two sayings exists serious drawbacks in judicial practice. Same conditions refer to price condition, payment condition, location of movable estate or landed estate, quantity and other equal factors. In some specific situation, same condition may include civil subject status of pre-emptive. Hence, as judging same conditions, it should begin with seller's benefit considering benefit between pre-emptive righter and seller. It mainly draws lessons from Japanese legislation. Unless the equal conditions of price and payment, pre-emptive righter can truly enjoy pre-emptive right. Three, it complies with our country's civil legislation, which illustrates author's cognition on interval of pre-emptive right exertion. Pre-emptive right should be exerted in a certain term. Its nature is fixed as scheduled period. The term is unsuitable for interruption or breaks and can't be lengthened in principal. Under the condition of seller fulfilling notification obligation, term of pre-emptive right'beginning should be the time pre-emptive righter received notice; if seller doesn't fulfill notification obligation scheduled period of pre-emptive right is one year calculating from the day seller and 3rd person sign effective sales contract. The term of pre-emptive right also needs to distinct movable estate or landed estate to do different regulation. Term of landed estate's exerting pre-emptive right is longer than movable estate's. If sales amount of bigger property, common amount of not big property and easy-destroying property are used to fix the term of exerting pre-emptive right. Because of no uniform classification standard on these properties, it is hard to distinct and master.