Study On Some Issues Of Preemption System

Preemption system dates back to the time of Roman.It is laid down in the civil law or commercial law in most countries nowadays and it has been newly studied in China in recent years.Since china's existing legislation on preemption is still not consummate,it causes a lot of confusion in juridical practice.The author focuses on the present legislation and practice in comparison with related countries'legislations and tries to give some reasonable advices to develop the preemption system after serious research. This article,composed of four chapters,only discuses on some issues about preemption which are disputed widely through scholars just according to the limit of the author's ability.The first chapter is about the historical inspection on preemption, comparing the system in china with the one in other countries(especially in civil law countries).Through studying preemptions in other countries,we can use their legislative experience for reference which will offer perfection methods for legislation.The second chapter discusses the fundamental theories of preemption including the definition,legal character and legal force.The discussion on preemption's definition sets a basis for all the later series of discussion.On this basis,the author uses many words to analyse several doctrines about the legal character of preemption and personally regards it as a right of request which can cause mandatory obligation of contracting.In other words,when the owner sells the object,the preemption obligee has the right to ask for the formation of a contract between himself and the preemption obligor.However,if the preemption obligor has reasonable excuses,he or she can resist the request.This article places emphasis on external force while talking about legal force of preemption.In case the preemption has been made known to the public,the preemption obligee can oppose the third party excluding the one with good intentions just for the sake of commercial order and safety,no matter the preemption is statutory or appointed.In the third chapter,the author looks deeply in to several questions about exercise of preemption,including the definition of selling,equal condition and the period of exercise.Selling object is the premise of exercise.The author draws a conclusion that preemption can't be exercised in auction after analysis on the definition of selling.Preemption only can be exercised when equal condition is met.Price is the key factor in equal condition and other factors can be reasonably transformed on the basis of not damaging the owner's interest.The author also analyses the influence on equal condition which comes from contract force between the owner and the third party.Finally,rational length of exercise period can balance the interest of parties concerned.The fourth chapter concerns with the studies of preemption conflicts and the methods to solve these conflicts.When the conflict of preemption between lessee and co-owner comes into being,we should balance the interest of parties concerned in specific case instead of formulating a set rule in advance.