Research On The Preemption Right Under The Perspective Of Civil Code

Preemption is an ancient legal system, preemption origins in Roman law in Western countries, China’s refusal to produce in the Tang Dynasty. However, compared with other systems, in addition to German civil law which have a more detailed provisions than the provisions in other countries are generally more simple. Although China’s current law provides for several types of pre-emptive rights, but quite simple in practice difficult to operate. This paper attempts in the Civil Code, compiled background, the nature and the presence of pre-emptive rights around the value of our various pre-emptive rights dispersed systematically sort out and analyze, to consider limiting the scope of the statutory pre-emptive rights, as well as demonstration increase in the future pre-emptive rights in the general rules of the Civil Code the necessity and legitimacy, and the corresponding system design recommendations.The first part of thesis introduces the various doctrines of preemption rights of property on the basis of the relevant right of first refusal on academic research results, made personal opinion that the realization of the rights, claims based on the effect of exercise and legal relief point of view, the right of first refusal should the nature of the right to form.This thesis’ second part analysis the specific type of the current law does not expressly prohibit the contracting parties to the convention of first refusal, meaning should be given first refusal to admit the existence of pre-emptive rights specified in the doctrinal classification and pre-emptive rights of the existing law. And there is a statutory right of first refusal is still the possibility to reduce the negative aspects of trading and transaction price, so the right of first refusal should be interpreted strictly applicable.The third part of this article discusses the premise of the exercise of preemptive rights exercise conditions, pre-emptive rights is a prerequisite for the establishment of an effective pre-emptive rights. "Seller sold to a third party subject matter" is the right of first refusal to make the basic facts. Judged "equal conditions" should consider trading price of the subject matter, the price payment terms, payment methods and payment obligations from other factors.The fourth part of the Civil Code in the analysis of other countries, pre-emptive rights in the legislative principle, based on the proposed model for our legislation, namely the Law of Obligation Act+special legislative mode dispersion. Recommended debt law, specifically the general provisions specified in the sales contract pre-emptive rights chapter, including the establishment of conditions, conditions for the exercise and Legal Assistance. The statutory pre-emptive rights are specified in the relevant part of the legal relationship. To make the right of first refusal to obtain effective against third parties, and may refer to Switzerland, China and France on the use of high-grade and the way to achieve third-party’s absoluteThe fifth part is a conclusion, briefly summarizing all the arguments of this thesis.