Study On The Preemptive Right Of Co-owners By Shares

The basic principle followed by the Civil Code is private law, that is, civil subject, in the daily life of the relationship between civil rights and obligations of all the changes, chosen by the parties determined in accordance with their own meaning, in principle, by the state or individual intervention. They are free from interference by public authority or another person, unless the law or administrative regulations have restricted the mandatory provisions of this.The independent right to possess, use and dispose of his own property, especially on the disposition of his own property, is the prominent reflection of his independent personality as civil subject.So, pre-emptive rights issues should not exist when property co-owners by shares dispose their share of property. However, whether ancient or today, in foreign or domestic, national civil legislation, pre-emption system exists in the national civil legislation. Co-owner by shares in PRC Civil Law is one example. Property Law section 101 in 2007has further provisions on this system established that other owners have priority to buy under the same conditions when one of co-owners transfers his shares. However, this provision is lack of interoperability in judicial practice, and simple legislation can not provide uniform guidance for exercise of rights or rights of relief. So, this paper attempts to explore the origin and development of this right stars form its history, and then analyzes its basic theories, and refer to the provisions of civil legislation in other countries, closed by a statement of legal remedies of the preemption system legislation in China. This paper including four parts:I. The history of co-owners by shares'pre-emptive rights. The West and China in ancient times, preemption system has already been existed. The first provision on preemption system was in the German Civil Code, and after the revised "French Civil Code", "Swiss Civil Code" and also made provisions for this. In ancient China, there was no such provision, but "Civil Law" provides for the system, and Taiwan also has the relevant provisions of the Civil Code. We can say that there were a similar recognition system on preemption system in the East and West.II. The general theories of co-owners by shares'pre-emptive rights. This part mainly illustrates the theories on co-owners by shares'pre-emptive rights. There is four parts. First, analyze of the legal concept. Academic understanding of the concept is basically the same words, and what we research is the history of rights, the object of purchase and the effect of the right; Second, analysis of the value of the right. This right does not meet the basic principles of autonomy of will, so its existence must have the proper value; Third, analysis of the nature of the right. Enumerates and analyzes four different academic perspectives, and affirmed the view of formation right; Finally, analysis of the legal effect of rights and make a distinction between general and special legal effect.III. The exercise of co-owners by shares'pre-emptive rights. In the civil legislation of China, the biggest problem of this right is lack of provisions on the exercise of pre-emptive rights. On the basis of refer of the relevant provisions of civil legislation from abroad, this part divides into four. First, I discuss the prerequisites of exercise of the right, especially analyze of the different forms of''transfer" and the standard of "same conditions"; Second, the duration of the exercise of right. Here is mostly to learn from foreign civil legislation of the relevant provisions of this; Third, the way of the exercise of the rights; Finally, the analysis of competing rights. I discuss two cases of the competing rights of internal and external situation.IIII. The legal remedy of co-owners by shares'pre-emptive rights. This part mainly discusses the liability for damages of notice of failure to fulfill obligations and damages against co-owners by shares'pre-emptive rights.