| Compare with legislation of the pre-emptive right system of civil law countries, the regulation of China's existing law to pre-emptive right is not enough and, with comparative rough legislation, China's pre-emptive right system is not complete. In real life, however, the dispute of pre-emptive right is not rare. Due to law applicable difficulty, the cases of pre-emptive right become complicated and difficult and lead to contradictory verdicts which seriously damage judicial authority and legal rights and interests of pre-emptive right buyer, seller and third party.The theoretical workers in our country didn't pay much attention to pre-emptive right system. During the process of regulation of Property Law, only article 192-200 of the Draft of Property Law of China provide a specific design to this system under charge of Professor Wang Liming, Professor Cui Jianyuan originally discusses equal condition, effect etc. On the Pre-emptive Right of Co-owners. The regulation of article 101 of Property Law and article 230 of Contract Law of the People's Republic of China to pre-emptive right is too simple to practice.On July 30, 2009, Supreme People's Court of the People's Republic of China promulgated and enforced Explanations to Several Issues about Laws Applied in the Trial of Urban House-leasing Contract Disputes defined enforcement and protection of pre-emptive right of leaseholder. But it still has deficiencies. In view of the above, the author of this thesis, on the basis of comparison and learning legislation experiences from civil law countries and Taiwan province, targets the problems in legislation and judicial practice at the present stage and focuses on the research of enforcement and effect of legal pre-emptive right of real estate so as to improve pre-emptive right system of real estate and to preserve legal interests of right owner.This thesis consists of four parts and has about 31,000 characters.The first part introduces theories about legal pre-emptive right of real estate and defines concept, connotation of legal pre-emptive right of real estate. After analyze and compare different scholars', both at home and abroad, ideas to the property of pre-emptive right of real estate, the author holds the idea that the pre-emptive right of real estate has the properties of formation right and real rights. The author expounds the rationality of the exits of pre-emptive right of real estate from three aspects: order, effectiveness and legal theory basis, and provides a hint for the following parts.The second part analyzes condition and enforcement of achieving pre-emptive right of real estate. First, it states condition of achieving legal pre-emptive right of real estate should have lawful basic legal relation. Second, it analyzes time, condition, duration, and way of enforcement of legal pre-emptive right and analyzes some problems in special deal. The author thinks equal condition includes price and method of payment and also needs to take third party's payment obligation into consideration.The third part's focus is discussion of effect of legal pre-emptive right of real estate to third party. Legal pre-emptive right of real estate is an overt right of real right property. The contract between third party and seller won't be invalid when the enforcement of pre-emptive right by buyer. The right is inoperative when seller transfers bidding goods to third party without announcement to buyer of pre-emptive right. According to general analysis of Legal pre-emptive right of real estate, the author thinks pre-emptive right of several co-owners and leaseholder who have the lease contract with registration and recording have the effect to against third party whereas pre-emptive right of former co-owners and leaseholder without registration and recording of lease contract don't have the effect to against third party.In the fourth part, after a comprehensive reference and analysis of advantages and disadvantages of different ideas about conflicts and solutions of pre-emptive right between several co-owners and leaseholder, between leaseholder and second leaseholder, the author thinks seller should select a legal pre-emptive right buyer among several co-owners when conflicts happen. From the perspective of the need to protect economic value and right, several co-owners should exercise pre-emptive right when conflicts happen among several co-owners and leaseholder. According to comparativeness of lease contract and basic legal relation of pre-emptive right, second leaseholder doesn't have legal pre-emptive right of real estate.This paper, combined with current Chinese courts of hearing problems abaut pre-emption cases, used the comparative studies, empirical analysis, theoretical analysis method, saying that equal conditions includes not only the price and payment method, but also needs to take a third party's payment obligations of the auxiliary. Whether the legal relations in accordance with the basis of the statutory pre-emptive publicity distinguish between whether the legal pre-emptive right of real estate against a third person effect.The author believes that new ideas... |
