An Analysis Of The Legal Attributes Of The Co-owner's Preemptive Right

Preemption of co-owner,also known as preemptive right,refers to the rights of the co-owner that according to the provisions of the law or contract when one co-owner is willing to sell the joint property,other co-owners have the priority to buy than another person on the same condition.the preemption system can be traced back to the time of the Rome law,which is an important system in the field of property law.The preemption system is not an independent field of civil law,but it is provided in corporation law,partnership law,creditor's rights law,property law and other civil law field.For legal policy considerations on certain legal relationship,the preemption of the co-owner is a reflect of the systemon co-own relationship,which makes the research of the co-owner difficult.For example,the legal nature of the right has so many controversial views such as right of formation,right of claim,property right,creditor's right,complex right,relief procedure right.Public opinions are divergent.The confusion in theory has also led to the uncertainty of the application of law,which not only affects the general public awareness of the right of preemption of the common people,but also hinders the proper exercise and protection of the right of preemption.As far as legislation is concerned,the "property law" and "the general principles of civil law" are only simple provisions and lack of description of legal nature and explicit rules.In March 1,2016,the "interpretation of the Supreme People's Court on Several Issues concerning the application of the" People's Republic of China property law "(a)" formally implemented the preemptive right system in details,especially for the more specific rules in the exercise.However,the legal nature of the right is no further explained,further analysis and evaluation.Therefore,it is necessary to discuss the legal nature of the right of preemption.This paper combines the legislative process in our country,with the total comprehensive analysis of the right,to seek the answer in according with the aim and legal system in China,and put forward views and legal suggestions.Besides the introduction and conclusion,the whole paper is about twenty-four thousand words,includes four chapters:The first chapter is to clarify the concept of preemptive right,and to discuss the definition of the right of preemption.The preemptive right system are summarized,the basic types of the preemptive right of the overall and summarized,and then makes a more detailed summary of the preemptive right system,and explain the preemption and common relationship between the right of priority in purchasing;then on this basis,lists the concepts easily confused,to further clarify the research the object of this paper;then discuss the common definition of preemption,is proposed in this article focuses on the preemption system on legal attribute and exertion rules corresponding to the problem;analysis and recognition system of the value of the last part of this chapter is to have the priority to purchase the people.The second chapter is the discussion and analysis of the rules of the exercise of the preemptive right.According to the latest interpretation of "property law"(a),and combined with the characteristics of right itself and legal practice,the joint establishment,people's preemption starting point,procedure,form and effect of legal protection and restriction,were summarized and analyzed,and further discuss the various rules and rationality is not reasonable.The third chapter discusses the legal nature of the preemptive right of the CO owner.Mainly from all kinds of civil rights division discusses some common properties of preemption,and on the foundation of analysis,focusing on the request and right of formation two mainstream theory for horizontal comparison and analysis,combined with the reality of our country,and demonstrates that "the preemption system as requested the right to a more reasonable conclusion".The fourth chapter is about the improvement of the system of preemptive right in china.Based on the latest breakthrough in legislation,this paper points out the problems still existing in the legislation,and finally puts forward some suggestions to perfect the system of preemptive right in our country.