| The present thesis researched on the effect of native statutory pre-emption of real estate. Due to the inadequate discussion on relevant issues currently, the author tried to make this research and developed means of the research to some extent. The present are made up of following parts:In the introduction, the author showed the necessity of the present research. On the one hand, while it is possible to learn from existed views on pre-emption, the conclusions of those viewpoints seemed too simple, for which the course of the analysis was not clear enough. On the other hand, native laws and regulations on pre-emption, which are always regarded as stipulations of authorization, kept silence on the effect of pre-emption. And the judicial expiation on such issue, which is considered as one of the rules guarding the legal order of the country (mainly refers to article 118 of"Advices on Principles of Civil Law"), is questionable. Therefore, the author tried to put forward the analysis of the effect of native statutory pre-emption of real estate. At the end of the introduction, in order to clarify the scope of following research, the author, by analyzing the concept and legal basis, defined the definition of the statutory pre-emption of real estate.ChapterⅠis mainly about the way of research on the subject matter. From the angle of concept of right, the author considered right not only as interests protected by law but also the power of intention realizing and maintaining such interests. Thus, the effect of right depends on the extent of legislative tolerance of two aspects: interests expected by right holder and the power of intention of right holders realizing and maintaining such interests. The first part of this chapter, based on the historic experience of abroad, concluded the interests demanded satisfied by the pre-emption institution. The author thought while not any interests demand can be accepted by legal system, so it is significant that the legal system make stipulations on formation of the effect of right, which together with interests demand consist of the origin of right's effect. In the second and third parts of this chapter, the author, from the inner legal system and outer legal system, discussed the way of realizing the stipulation of legal system in certain specific institution.In ChapterⅡ, based on previous discussion, the author, by applying the research methods established in ChapterⅠ, analyzed pre-emption institution in German law. The necessity of this chapter is that by researching on similar institution in German law, the author showed the way to deal the relationship between one specific institution and the whole legal system in a country with high developed legal system, and thus concluded several principles which are deemed as valuable to transplant.In ChapterⅢ, considering the way to realizing relevant institution in German law, the author made discussion on the effect of native statutory pre-emption of real estate. Following the way of research and principles concluded from previous analysis, the author came to the conclusion that though the three statutory pre-emption of real estate prescribed by law in china, which we regarded as pre-emption of co-owner by shares, pre-emption of common owners and pre-emption of lessee of dwelling unit, have different basis, but they show the same effect on the seller. While concerning the third party, thanks to different extent of publicity of respective basis, only two kinds of pre-emption can be applied to against the third party, one is the pre-emption of co-owner by shares, and the other is the pre-emption of lessee of dwelling unit when the leasehold recorded by certain government department. Based on this conclusion, the author analyzed article 118 of"Advices on Principles of Civil Law"and came up with the idea that article 118 shall be modified due to its unreasonable and unsystematic character. |
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