Preemption System Research

Preemption is the kind of right that according to the law or contract, when the owner want to sell the subject, preemption people have the priority to buy, basing on the same condition. Preemption system can date back to the time of Roman. It is laid down in the civil and commercial law in most continent countries. Although the history of preemption is so long and the rules of it are more and more detailed, the scope and type of preemption have much difference in the specific provisions of different countries owing to diversity of legislative technology and social policy. Moreover, there is controversy on basic theory of preemption, especially in the legal nature and the force of law, which cause a lot of confusion in juristical practice. In the legislation of our country, there are a lot of vague terms needing to be explained appropriatly. And supreme people's court promulgated new juristical explanation in 2009, abolishing original rules, establishing new rules on the effect, exercise period and restrictions, which need to be elborated and analysed futherly. Therefore, it is necessary to explore the theory and relevant rules of preemption.Besides the introduction, the whole thesis includes 4 chapters.Chapter 1 is about the summarization of preemption. It defined the concept of preemption, introduced the basic type of preemption and elaborated the preemption on the base of usufructuary relation, the preemption on the base of total relationship, the preemption on the base of inheritance relationship, the preemption on the base of funding relationship. The last part of this chapter analysed the claim and cause of abolishing the preemption and put up my own opinions.Chapter 2 is about the theoretical analysis of preemtion. Firstly, introduced the view of property right-claims, the view of the right of expection,the view of the right of formation and evaluated these views on the basis of the feature of preemption. Secondly, introduce the view of the effect of property right and the effect of claims and analyze the influence on the third party. Because the property effect of preemption will influence the transaction security, the chapter explore the standard of eatablishing property effect.Chapter 3 introduced and analyzed the legislatian of preemption of foreign countries and regions. It include the premise, period, effect of preemption in the provisions of Germany, France, TaiWan. Moreover, it summarized the exercise structure of the aforementioned countries and region. Besides, introduced the legislation of Japan and common law briefly.Chapter 4 introduced the legislation development of preemption in our country and brought up some suggestions of improvement. Firstly, explained the vague term of the legislation of our country, analyzed and summarized the rules of qualification, period and effect of preemption;secondly, pointed out the problems existing in the legislation; thirdly, analyzed and commented the new judicial explanation issued by the supreme people's court;finally, discussed the measures of improving relevant system.