Study On Some Issues About Preemptive Right

Preemptive right, also known as right of pre-emption and right of first refusal, is a contractual or legal right that gives its holder the option to enter a business transaction with the owner of something in same conditions to a third party, before the owner is entitled to enter into that transaction with the third party. It can balance autonomy of will and interests of vulnerable groups, and also can manage the conflict among lessee, leaser and a third party. There are related legal sources in many civil law countries, and in our country, we also have related laws and regulations in The General Civil Law, Contract Law, and judicial opinions. However, the real estate market is expanding increasingly, and gradually, the academia begins to pay attention to the defects of the preemptive right. It is too principle to apply that leaves a lot of issues to discuss both in juridical practice and in academia.Based on the existing laws and regulations, this paper try to ravel out the essential attributes of preemptive right by analyzing some typical cases, and hope it will be helpful to judicial practice. The preemptive right discussed below refers to the lessee’s preemptive right.This paper consists of introduction, main body and conclusion:The introduction part expounds the motivation of this article, that is, analyzing preemptive right from both theory and judicial practice perspectives, and offer a mentality to comprehend and apply this mechanism.There are four chapters in the main body:The first chapter analyzes the legal character of preemptive right. It is the theoretical basis to resolve those conflicts in juridical practice. This chapter will analyze existing theories, like theory of gestaltungsrecht, theory of expectant right, theory of real right, theory of creditor’s right, then define it as a gestaltungsrecht, establish the basis to resolve those conflicts in juridical practice.The second chapter is about the exercising conditions of preemptive right. The author will introduce a typical case, evaluate it and analyze the reason why court of first instance made the erroneous judgment. Then the author will discuss the implication of “same conditions”, and “same conditions” shall not only conclude the price, but also payment and other related conditions.The third chapter is about the subject of preemptive right.The author will introduce a typical case, analyze the reason why the sub-lessee shall enjoy the preemptive right, and has priority over the lessee.The forth chapter is a detailed discuss about the term of preemptive right. There are two parts in this chapter. Firstly, it is the term of preemptive right when the leaser performed the notification obligation; and secondly, it is the term of preemptive right when the leaser didn’t perform the notification obligation.The last part is the summary, it is mainly about the conclusion that the author can reach after the whole discussion in this paper. In the meantime, the author will put forward some points, and state the deficiency.