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Study on Preemptive Right

Author: ShiLuFu
Tutor: MaXinYan
School: Jilin University
Course: Civil and Commercial Law
Keywords: Preemption Normal and abnormal states Formation right Effect level Legal Regulation Legal remedies Legislative model
CLC: D913
Type: Master's thesis
Year: 2005
Downloads: 114
Quote: 4
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Abstract

As an important rule of Civil Law, the value of the preemptive right should accord with the value of the modern Civil Law. Therefore, the value of the preemptive right in the modern Civil Law shall include the following aspects: the design and explanation of the preemptive right should be consistent with the operation of the ethic of the contact and the justice of private law; which should emphasize particularly on the protection of the security of transaction, and even cost the static legal relationship of property in order to protect the security of the dynamic legal relationship of property. Based on the above value, the article deep probes into the fundamental problems in respect of preemptive right in order to clear the basic theory and to some extent perfect the legislation and promote the development of the juridical practice. The article is divided into four chapters. In the first chapter “Summary of Preemptive right”, the writer firstly introduces the legislative situation of preemptive right in the Civil Law countries by the means of comparative law. Secondly, the writer introduces the general definition of preemptive right, that is according to the agreement between parties or provisions of law, when the seller sells the object the preemptive right holder shall have the preemptive right to purchase the object in the same conditions. However, the writer considers the general definition of preemptive right unilateralist which cannot contain the inherent meaning of preemptive right, and it is necessary to clarifies the inherent meaning of preemptive right. The following aspects of preemptive right shall be included. On the one hand, the law requests the seller to perform the obligation and provides the preemptive right holder choice whether exercise the preemptive right, which is the normal state. On the other hand, when the seller does not perform the obligation of information, the preemptive right holder may seek for the statutory compensations, which is the unusual state. In the unusual state, the seller contacts with others without informing the preemptive right holder, after obtaining such information if the preemptive right holder accepts the same conditions to purchase the object, the law provides the compensations for the preemptive right holder. Finally, based on the analysis the basic type of preemptive right, according to the causation of preemptive right the writer differentiates the statutory preemption from preemption-in-will. In the second chapter “Legal Nature of Preemptive Right”, first of all the introductions and comments related to the legal nature of preemptive right is given, and the writer considers that the theory of contingent right, property right, creditor’s right and contingent right with condition cannot disclose the legal nature of preemptive right completely, and then the writer points out the legal nature of preemptive right shall defined as right of formation, because not only the inherent meaning of preemptive right accord with the intension of right of formation, but also the functions of preemptive right matches the functions of right of formation. Thirdly, the effect mechanism of the legal nature of preemptive right is deep analyzed, that is preemptive right only confirms the purchase contract relationship between the preemptive right holder and the seller and it cannot directly result in the property or debt relationship. In the third chapter “Legal Effect of Preemptive Right”, in the first part, the definition of preemptive right is given by the writer. The article deems that the logic starting point of the legal effect of preemptive right is the exertion of preemptive right. After establishing the legal relationship of trade between parties by exerting preemptive right, the function of preemptive right as technic and instrumental right is realized and it doesn’t influence the legal effect of preemptive right directly which embodies the legal effect producing by the trade contract making by the preemptive right holder and obligor. In the second part, the writer analyzes the legal effect of preemptive right. The legal effect of preemptive right is as following: the preemptive right brings the function of the right of formation into play after being exerted that is creating the trade contract between the seller and the preemptive right holder and producing the effect of trade contract debt. The article discusses the cases of real right alternation basing that. In the third place, the writer points out the conflict with different preemptive right, especially analyzes how to deal

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