The Preemptive Right For Purchase Of Co-owner

The preemptive right for purchase of co-owner is a right that co-owner can purchase the share ofthe commonly owned realty or chattel, which will be sold to the third party by one of the otherco-owners, prior to the third party on an equal footing. There were some provisions for preemption rightfor purchase of co-owner in Chinese law system. However, even the Real Right Law of the People’sRepublic of China, which adopted in2007, just provided some terms in principle. In addition, for thereis no specific content in this law,it make the specification lack of maneuverability, and cause a lot ofinconvenience to the judicial practice. In view of this, the author, on the basis of learning legislativeexperience from some civil law countries and Taiwan, focus on exploring and researching the exerciseof preemptive right for purchase of co-owner for problems occurred in the course of the trial, applyingeconomic analysis and legal interpretation methods, in order to improve the preemptive rights forpurchase system and maintain interests of right holders.In addition to an introduction and conclusion,this paper is divided into four parts with abouttwenty-five thousand words.The first part of the paper outlined the nature of preemptive right for purchase of co-owner. Thereis a brief introduction to different academic doctrines of preemptive right for purchase of co-owner, andthen the author expounded his views on the basis of analyzing of each doctrine theory. I agree with thedoctrine “conditional right of formation” except the “condition” attached to.The second part of the paper discussed the scope of application of preemptive right for purchase ofco-owner. For the Real Right Law of the People’s Republic of China only expressly provides thepre-emption right of several co-owner, the author in this section make a study of whether co-owner havethe preemptive right for purchase for the other cases in practice. According to the stipulations in thegeneral principles of the civil law of the people’s republic of china, joint co-owner can applypreemptive right for purchase of co-owner in practice. As for the partitioned ownership of building areas,it don’t apply preemptive right for purchase of co-owner even though it contain “common ownership”.At last, the author also discuss some cases the preemptive right for purchase of co-owner can’t apply,and the exercise of preemptive right for purchase of co-owner is limited in the way of enforcement andauction.The third part of the paper emphasized on disputed issues occurred in exercising of preemptiveright for purchase of co-owner. First, from the uncertain equal footing, the author think it should definethe true meaning of the equal footing. Second, to maximum protection of rights and interests of the rightholders, it is recommended that it should provide a period for exercising preemptive right for purchaseof co-owner and notification obligations. Third, the effectiveness of preemptive right for purchase ofco-owner is discussed,especially the question of the third person, and the author think it should make adifference between different situations. Finally, we discuss the concurrence of preemptive rights forpurchase. On one hand, it has cleared the principle of concurrence of preemptive right for purchasebetween co-owners. On the other hand, it has reached the point of view that preemptive right forpurchase of co-owner is exercising prior to preemptive right for purchase of lessee.The forth part of the paper analyse preemptive right for purchase of co-owner in a comparative way.The author obtain some legislation enlightenments and shortages of Chinese legislation on the basis ofreferring to the relevant provisions of preemptive right for purchase system in Germany, France,Switzerland and Russian. Then, the author review the results of the previous three parts and offerseveral legislation proposals.