Study On The Preemptive Right Of Preferential Housing

Priority comes as a tough problem in the civil laws of China,and the systems about it in legislation are scattered and in a mess.These contributes to the disputes over its nature and concept.And as a concept falling under the priority,the statutory preemption has not yet received adequate research,with no systematic research findings or general theory available.And the determined preemption represents a more uncommon field,which has received little concern and research.In contrast,some scholars have grave doubts about the concept,thinking it bears no independent function value.In practice,the author has already seen even more disputes over the concept in question,which entails the pressing presence of the theory and basis of determination as solutions to the disputes above.Based on the weighing on particulars interests and the payment of the previous considerations,the right holders are given the priority for conclusion of agreements.In the judicial practice,however,the judges are prone to confinement by the preemption as a legal right,and the parties involved shall not set up without authorization ideological cages beyond laws,and they dare not to face the proper claims by the right holders.The paralyzed judicature represents the absence in the legislation,and whose absence in turn will hold back the new systems.The paper,on the unreasonable absence of Chinese current priority system and the promotion of autonomy of private law,begins with the legal properties of the determined preemption,focuses on the definition and analysis of the concept,legal properties and features and system value.The Chinese current legislation has defined only the legal priority system,but not the determined priority system.Some of people,with the booming economy in China alongside upgrading public demand,in order to meet the demand for particular emotion and management,wish to acquire the "priority" over the real estate following the paid "advance investment".Such a system cannot be adequately met and solved by the determined priority.Such a system cannot be adequately met and solved by the determined priority.In the paper,on the premise of the critical demonstration of the legal priority,the determined priority is put forward.Furthermore,the nature of the priority is analyzed and demonstrated.The nature of the priority comes largely in two forms of right of formation and quasi-real right.The author,however,in the three dimensions of right's nature,form to exercise the right and the effect of the right,expounds the priority as a right of claim which is of relief.Though a relative right,it,only with the channels and forms for publicity,may power the determined priority to confront the third party.The decomposition of its legal effect and the remedy and channels for the violated right constitutes the system of the determined preemption.To conclude,the paper proposes the specification of the determined preemption in preparing the civil code as a means to echo the system demand for emerging and voluntary negotiated preemption among the public.