Study On Pre-emptive Right System

The pre-emptive system is widely set in the civil law system in many countries now. The lessee’s right of pre-emption belongs to the pre-emptive right. This system has been ruled in the administrative regulation of state council in 1983, while was legally ensured by the contract law in 1999.Currently, the subject of Chinese pre-emptive system is mainly ruled by the <Contract Law> and the <Interpretation of the Supreme People’s Court on Several Issues concerning the Application of Law in the Trial of Cases about Disputes Over Lease Contracts on Urban Buildings>.But the laws fail to rule the compensation and the security of the system clearly, which make it hard to fully accomplish the legislative goal.The careless legislation leads to a phenomenon, that is, in the practice, the housing lessee cannot get the ownership of the house by using the right of pre-emption. Also, it is often found that the lease fully acknowledge the lessee has the right of pre-emption, while he still invades the lessee’s right deliberately. Besides, many leaps also exist in the pre-emptive system.Although about half a century has been gone since the start of the system, but no exact conclusion about the legal nature, exercise and the protection of the system had been drawn among the academic circle and the judicial practice circle.The lag of the theory leads to a controversy for the local courts at the time they deal with the cases of the pre-emptive right. For example, they may find it hard for the application of the law, for different understandings of the legal nature, the standard and scope of the compensation. And this results in a different result of the same case from the different court, which can be seen as an embarrassment in the application of the law.The idea of this article is first analyze the problem of the system in theory, then raise the solution of solving the problem. The purpose of writing this article is to raise the corresponding legislative suggestion of building the centralized system of pre-emptive right in our future civil law.Generally speaking, the main structure of this article belongs to the logic structure of ‘raising-analyzing-solving’. The key point of this article is on the theoretical difficulties in the process of systematically analyzing the system of pre-emptive right. And the corresponding legislative suggestion based on the result of analysis at last makes sense.Specifically, beside the introduction and the concluding remarks, this article can be divided into three chapters. The following is the main content.The first chapter analyzes the basic definition and the legal value of the system of pre-emptive right. It gives the basic academic definition and the legal classification of the object of study, and summarizes the three legal values of the right. And this not only builds a theoretical framework of the following discussion but also responds to the theoretical perspective of abolishing this system directly.The second chapter discusses the definition of the nature of the right, which demonstrates the existing or inevitable theoretical flaws of the property right theory and the right of claim separately, then explains the rationality of defining the pre-emptive right as right of formation on this base. At last, on the premise of the right of formation, this chapter analyzes the ideal effect of the right.The third chapter analyzes the protection of the system of pre-emptive right. First of all, this chapter analyzes the base of the right of claim, on which the lessee can raise the compensation request, and evaluates the theories of liability for breach contract, liability for fault on concluding a treaty and tort liability, so that pointing out the deficiency for which the protection of the pre-emptive right is based on its nature of creditor’s right. Then it analyzes that the pre-emptive right can be applied to the mode of the advance notice registration, and the advantages of which the pre-emptive right should be protected on its nature of property.