Study On The Preemptive Right Of Co-owners

The system of preemptive right of co-owners is a traditional civil legal system.It can be seen in ancient China or in the civil system of traditional continental law system.In essence,it is the balancing of interests of legislators,focusing on protecting the interests of the co-owners and restricting the rights of the third party.Therefore,there should be more detailed rules in the design of the system,and the handling in judicial practice should be more cautious.However,the provisions on the preemptive right of co-owners in China are too simple,and the legal nature,effectiveness,scope of application,the way of exercising and the relief mechanism are still in dispute.Therefore,the author uses case studies,comparative studies and textual analysis to study the system of preemptive right of co-owners.By combing the current legislation on the legal effect of the right of preemptive purchase by the co owners,this paper analyzes the relevant disputes in the academic circles,and discusses the related problems of the right of preemption of the co-owners.And by comparing the relevant legislation and judicial experience at home and abroad,on the basis of determining its nature and effectiveness,the paper puts forward some suggestions on improving the system of the right of preemption of the co-owners.The article is divided into four parts.The first chapter is an overview.First,we should define the concept of the right of preemption of the co-owners,and clarifies the concept of the right of preemption,the co-ownership and the right of preemption of the co-owners.Secondly,it introduces the development process of the right of preemption in China and foreign countries and the establishment of the right of preemptive purchase by the co-owners of our country.At last discuss the significance of the protection of the right of preemption.The second chapter combs the status and shortcomings of the preemptive right of the co-owners.First,the present situation of the legal effect of the right of preemption is studied,including the academic controversy of the right,the current regulations,and the status quo of the judicature.It analyzes the theoretical arguments on legal effectiveness and the protection of third parties,the status quo and the status quo of the judiciary should be combed.Secondly,it studies the shortage of the right of preemption of the co-owners in our country,including the unclear nature and effectiveness,the ambiguity scope of application,the dispute of the exercise and the different remedy manner,are the basis for the study of the system.The third chapter analyzes the extraterritorial provisions and enlightenments of the effect of preemptive right of co-owners.The relevant legislation and judicial experience relating to the right of preemption in the representative civil law of Taiwan,the civil code of Germany and the civil code of France are analyzed respectively,and the enlightenment of the system of the right of preemption of the co-owners in China is summarized.The fourth chapter is to improve the right of preemption by the co-owner.First,determine the legal nature and effect of the right of preemption of the co-owner,and consider that the right of first refusal to buy a co-owner is the right of formation,and recognize the real right effect of the right of preemptive purchase by the co-owner.Secondly,the scope of application of the right of preemptive right of the co-owner is clearly defined,and it is considered that its real right effect should be applied only in the scope of real estate.In the case of selling common objects,it should also be applied to the right.And further improve the way of exercising the right,from the parties' notice obligation,the prior abandonment of right,the consideration of the personal factors and so on.Finally,the remedy mechanism of the preemptive right of the co-owner should be perfected,and it is believed that the right person should be carried out in accordance with its legal effect..And the system of public notice under the effect of real right should also be perfected.In judicial practice,it should be based on the nature of its right of formation,and deal with the related problems in the lawsuit.