A Study On Statutory Pre-emptive Right

For historical reasons, China's existing legislation on pre-emptive right is far from perfect, which leads to a lot of confusion in juridical practice, while the theorical study on pre-emptive right is mainly jurisprudencial, unsystematic, and arouses heated discussion and different viewpoints.Valuation-analytically and real evidence-analytically, this dissertation carries out a systematic study on pre-emptive right from the perspective of jurisprudence and social science ,coming straight to the point in the first chapter that from the angle of the history and law- and -economics, pre-emptive right incubates from its reasonable prusdence support and good social functions; pre-emptive right is a civil privilege entitling the subject in specie to the first chance for purchasing the object; and pre-emptive right is an expective right, a real right and a right in forms with attached condition. Based on the above-mentioned point, with the analysis on the categories of the pre-emptive right, the acquisition of the pre-emptive right, the excise of the pre-emptive right ,the validity of pre-emptive right, the conflict between the validity of pre-emptive rights, this dissertation then presents the following viewpoints: Coowner's pre-emptive right, house tenant's pre-emptive right, lien-holder's pre-emptive right, shareholder and staffs pre-emptive right should be stipulated by laws as statutory pre-emptive rights, for they embody the value of pre-emptive right, while as a policy for our country's reform period, poor condition housing staff and the unit shall not have statutory pre-emptive right. However, house tenant's pre-emptive right in housing reform shall be stipulated as statutory pre-emptive right, for it is the same as tenant's pre-emptive right. Pre-emption right should be acquired in law-stipulated legal relations, the moment the basic legal relations form, and must not be solely transferred. Pre-emptive right shall be exercised in specific forms of transaction, atthe moment the object is sold, by the same offer as the third party present, in a specific period and in a specific way. The obligee shall not solely transfer his pre-emptive right to others, shall exercise his pre-emptive right with statutory conditions, and shall not withdraw his declaration of will to exercise his pre-emptive right. The obliger shall in a way of good faith assist the obligee to exercise the pre-emptive right, shall bear the duty to notify the obligee to exercise the pre-emptive right ,and shall bear the duty to accept the obligee's offer to exercise the pre-emptive right. The third person's transaction about the object is invalid to the obligee's pre-emptive right. When there exist several co-owner's pre-emptive rights on the same object, pre-emptive right shall be exercised in accordance to the agreement between the co-owners; or, when there is no agreement, according to the co-owner's respective shares on the object; or equally; or, when the above-mentioned ways harm the function of the object, in consideration of making good use of the object .Co-owner shall take priority to exercise his pre-emptive right over others. House tenant shall take priority to exercise his pre-emptive right over subtenant.