Study On The Potency Of The Preemption Right Of The Part Owner

The right of preemption is one legal right based on specific primary relationship, which was developed from the right of redemption in Roman Law. The preemption right of the part owner comes from the common relationship, which the part owner has the priority to buy proportion in common or community property over third party according to the law in traditional view. Under the current market economy environment, the right of preemption plays an important role in resource allocation and distribution of rights as one civil legal system.The content and efficacy are formulated in worldwide national laws, and the provision of preemption right in our country are concentrated in "General Principles of the Civil Law "and "The Real Right Law". Because of the slow development of our market economy, and the lag of our study in civil law theory, the legal rules are just principle provisions and didn’t stipulated the nature, exertion and potency of the preemption right, and also lack corresponding protection which comes from the judiciary. This directly result in the dispute which is related to the preemption right of the part owner in our daily life can’t be solved in time. This problem in the practice is bound to cause the theoretical thinking, so the preemption right of the part owner has become a hot issue in discussion and study of law. At present, the problems that are bound up with preemption right of the part owner in theory and practice were produced by the misunderstanding of the potency, which result in the consequence that benefit of obligee was without proper protection. So this thesis tries to study the potency of the preemption right of the part owner on the basis of legal provision, and develop a deeper understanding of the potency. The discussion includes internal validity, external validity and efficacy conflicts three direction, to solve the different problem in actual situation of the rights and protect the legitimate rights and interests of the obligee.There are four parts in the structure of the text, except the introduction and the conclusion. Adopting the way of asking question, the writer confirms the research direction and the course, and also explains the significance of the study of the preemption right of the part owner. Because of the simple legal provision of the preemption right of the part owner in our legal system and the different viewpoints of the scholar that about the potency of the preemption right, the judges have no judgment criterion in both law and theory in practice. So the text tries to deep analysis and discusses the potency of the preemption right of the part owner by the way of solving problem.The first part analysis the theoretical basis of the preemption right of the part owner, the main emphasis is the production and the purpose of the preemption right. From talking about the rule of law, the preemption right of the part owner is one legal right, to talk about the foreign legislation and our legal provision laid a solid foundation for what follows in this passage. Although the provision of the scope of application, property and potency are different in worldwide national laws, but primary countries have the rules of the preemption right in civil law system, to affirm the protection of the preemption right of the part owner.The second part discusses the internal validity of the preemption right of the part owner. The internal validity of the preemption right of the part owner means the rights and obligations of the seller and the preemption claimant what formulate in the legal system. This part starts with the discussion about the nature of the preemption right of the part owner, confirms that the preemption right of the part owner is one right of formation. This will do better for implementing the objective of the preemptive right system. And by means of raising a question in an established case, the writer talks about the nature of the preemption right of the part owner whether this right is an expectant right or a jus acquistitum. This part expound the limitation when the right exercises and the obligation of the seller specifically, based on confirming the nature of the preemption right of the part owner.The third part discusses the external validity of the preemption right of the part owner. The potency of the preemption right of the part owner may confront the third party whether or not, can’t be establish on the discussion about the property right theory and credit theory. Whether the preemption right of the part owner has the confrontation with the third party, is based on the type of the third party. The third party includes two situations, the bona fide third party and the mala fide third party.The fourth part of the text talks about the efficacy conflicts and solution of the preemption right of the part owner. This part discusses the efficacy conflicts of the preemption right of the part owner between the part owners, and the efficacy conflicts between the part owner and the tenant two conditions. Confirm the different problem-solving methods, to guarantee the purpose of the mechanism and to safeguard balance of interests between the parties. At the situation that the efficacy conflicts between the part owner and the tenant, the preemption right of the part owner in preference to the pre-emptive right of renter. And when efficacy conflicts of the preemption right of the part owner happened between the part owners, it is reasonable to dispose in accordance with the proportion that part owners have in common or community property.