Pre-emptive Research

There are many regulations about priority in civil law. The preemptive right is the most complicated one among all the civil rights of priority, it is mentioned in many sections of civil law such as general principles of civil law,obligations, real rights, domestic nelations, inheritance and so on, and it's existence is still be questioned by many scholars. In current in effect laws of our country, there are some sporadic regulations about the preemptive right of renter, part owner, copartner and shareholder, but haven't formed an uniform legal system about it. Based on the research of some legal regulations about the preemptive right, the author tries to inquire into its academic legal foundation and give his own opinions about it.First, the author studied the history of the preemptive right in both China and foreign countries, he thinks it is the endocentric and close character of petty farmer society and patriarchal clan system of ancient China that made the preemptive right in China different from the western countries. Then the author analyzes the different trends of the preemptive right system in both Roman and German laws. After succinctly enumerated the legal regulations of the preemptive right in different countries and areas, the author explains their characters, effectiveness,categories, qualifications to use, characteristics and the using orders of the concomitant the preemptive rights.Concerning the characters of the preemptive right, different scholars have different opinions, for example, regard it as the right of claim, the right of formation, the conditional right of formation, the right of gaining real right, the expectative right, the real right, the claim or the compromise of the above. After analyzed the advantages and the disadvantages of the above theories, the author considers that the theory of the conditional right of formation is comparatively felicitous. The author emphasizes that the conditional right of formation doesn't mean the right itself is conditional but mean this right can only be performed with certain qualifications, that is, the performance of the preemptive right must fit two qualifications: the sale of the object and the same qualification. The effectiveness of the preemptive right is determined by the category it belongs to. For example, the preemptive right of renter has the effectiveness of real right, while the preemptive right of part owner has only the effectiveness of claim. So we should distinguish the effectiveness of the preemptive right according to its category.There are many different kinds of sporadic laws to regulate the preemptive right. It has practical meaning to distinguish the legal preemptive right and the conventional preemptive right. The legal preemptiveright is regulated in different laws, so it has the effectiveness of real right or claim, while the conventional preemptive right only has the effectiveness of claim, so it can't be used to antagonize the third party. The legal preemptive right can't be discarded in advance, while the conventional preemptive right can. The preemptive right based on real right is different from the preemptive right based on claim, similarly the preemptive right resulting from claim isn't equal to the preemptive right of claim. So we shouldn't equate the character and effectiveness of the right's basic legal action with the character and effectiveness of the right itself. As movables and real estate are different in their values, forms and the regulations about their public revelation when real right changed, the qualifications to perform them are also different. So it is practically meaningful to distinguish the preemptive right of movables and real estate. In addition, according to the number of individuals, the preemptive right can be divided into single-preemptive-right and multi- preemptive-right; according to whether the object is for sale can be divided, the preemptive right can be classified into the preemptive right of can-be-divided-objects and can-not-be-divided-objects. It also has many...