Study On The Legal Issues Of The Preemption Right Of Co-owners

Maintaining economic order,improving transaction efficiency and promoting the best use of goods as the value goal of the system of preemptive rights of the common people play a vital role in the application of the system of preemptive rights of the common people in practice.As early as the Tang Dynasty,the system of preemption rights was stipulated in the relevant laws of our country,but the system of preemption rights of co-owners is still too brief,which leads to the imperfection of the system of preemption of co-owners,and makes the judicial and theoretical academic circles hold hold on the related problems of the preemption rights of co-owners.With the promulgation and implementation of the Supreme People’s Court’s interpretation(1)on some issues concerning the application of the Property Law of the People’s Republic of China,the system of preemption according to share ownership has aroused controversy in academic circles.Article 306 of the Civil Code of the People’s Republic of China(Draft)of 16 December 2019 adds to the obligation to notify the preemption of the co-owners.With the development of co-owner preemption system in our country,the relevant laws of our country have gradually improved the co-owner preemption system,but the legal effect of co-owner preemption right,the specific content of notification obligation and the scope of application have not been clearly stipulated.First of all,the transfer of common share by the co-owner,without notifying the other co-owners to transfer the common share,infringes on the preemptive right of the other co-owners,and the legal effect of the exercise of the preemptive right by the co-owner has not been clearly stipulated in our law.There are two views on this.First,it has the effect of creditor’s rights.Second,it has real right effect.Root According to the study and reference of the relevant legislative provisions outside the country,the academic disputes in China and the status quo of legislation,the author is more inclined to have the effect of real right.Secondly,the notice obligation is the precondition of the co-owner’s preemption right,and the time and method of the notice obligation are not clearly stipulated in present law and the draft civil code.Through the study of extraterritorial legislation,combined with the current situation of our country.The author thinks that the time of the assignor’s notice obligation is stipulated after the conclusion of the contract between the assignor and the third party,and the other co-owners are notified in writing immediately,which is more in line with the national conditions and legislative purposes of our country.Thirdly,whether the transferor can use mutual exchange,auction and gift First purchase right,because the law does not make the stipulation,our country has the dispute.Through the relevant legislation of our country,academic disputes and extraterritorial legislation reference,the author believes that our country should be clear in the legislation transfer of the paid,mutual exchange,auction and gift can be applied to the preemption will be solved.Therefore,this paper focuses on the above three aspects to discuss and improve the problems existing in the system of preemptive rights of co-owners.Firstly,this paper summarizes the basic idea and legal nature of the system from the overview of the preemptive right of the co-owners.On this basis,through the legislative provisions on the preemptive rights of the common people in China and the relevant judicial practice process in China In China,the judges understand the status quo of the preemption system of co-owners according to the relevant judgments in the case of preemption by share.Through analyzing the present situation of the co-owner’s preemption right,combing the existing problems of the co-owner’s preemption right system in our country,drawing on the relevant legislative provisions of France,Germany and Taiwan,this paper puts forward some suggestions on the problems existing in the co-owner’s preemption right system.Some scholars have discussed the related issues of the preemption system by share and put forward many valuable points of view.The author’s knowledge is still shallow,on the basis of studying the views of predecessors,combined with the present situation of justice in our country And the relevant legislation of extraterritoriality,and put forward their own poor opinions on the problems existing in the system of preemption of co-ownership in order to improve the system of preemption of co-ownership in China.