The Research On The 'Preemptive Right Of A Several Co-Owner'

Our civil and commercial law as well as relevant judicial interpretation provide some rules on the 'Preemptive Right of A Several Co-owner',but these rules are too principled to apply.Interpretation I of the Supreme People's Court on Several Issues concerning the Application of the Property Law of the People's Republic of China('Judicial Interpretation of Property Law' for short),specifies the regulation and refines some questions in it,however,there are still some unclear ones.In consideration that relevant cases and contradictions are common and general in judicial practice,it is necessary to give a further interpretation on the regulation to offer a clear guideline to juridical practice.The foundation of regulations of 'Preemptive Right of A Several Co-owner'contains three parts.Firstly,maintaining the stability of co-ownership and reducing property disputes by decreasing the number of right-conflict subjects and limiting the entrance of the third party into the co-ownership.Secondly,decreasing the number of several co-owners and letting original several co-owners keeping controlling estate in common as well as promoting the utilization efficiency of and making the best use of estate in common by free trades.Thirdly,rooting in the inborn flaws,which means that the difference between the co-ownership and ownership decides that the right of disposition of several co-owner is less than that of owner,of co-ownership share.Preemptive right is not enjoying discount.Several co-owners have to exercising the right under some limits,the 'same conditions' in these limits has great value and effect.Because the regulations are established and designed to balance the interest relationship among seller,a thirty party and right-holder,and the mechanism plays an important role in it.In theory,the judgement,on the content of the mechanism,bases on the contract between a third party and seller and depends on 'the relatively same'principle.Generally speaking,the 'same conditions' mechanism includes price,payment,time of payment,etc.The effectiveness period is also a limit on the 'Preemptive Right of A Several Co-owner',there are two parts of contents in it,the duration of the period and the start counting of it.As for the duration,there are two conditions,one is confirming the duration by appointment as there exists appointment,the other one is confirming the duration by regulations as there exists none and under the circumstance there are two regulated durations-fifteen days and six months-applying to different situations.As for the start counting of duration,in the situation that seller performs the duty of information the start counting of the duration is the arrival of information.In the situation that seller violates the duty the start counting of duration is the time right-holder knows or should know the transfer.If the time right-holder knows or should know the transfer cannot be sure,the start counting of duration is the time the transfer happens.The exercising effectiveness of the preemptive right of a several co-owner contains two parts,internal and external effect.The internal effect only affects the relationship between seller and right-holder,so once the right is exercised there is established a contact legal relationship between seller and right-holder.The external effect happens in three parties-seller,right-holder and the third party.And the right has effect of property,so it could affect the contract legal relationship between a third party and seller.