The Study Of The Next-of-kin Preemption System

There is a wide range of pre-emption rights in China,but one of the most special is the pre-emption right of close relatives,which plays an important role in stabilising kinship relations and ensuring social stability.In the latest article 726 of the Civil Code,the right of pre-emption of close relatives was formally included in the law for the first time.However,following the introduction of this article,some scholars have questioned the establishment of this right.At the same time,as the right of pre-emption of close relatives is only stipulated in the Civil Code,the relevant judicial interpretations have not provided detailed rules on the application of this right,resulting in a lack of clarity in the understanding and handling of issues such as the determination of the conditions for the application of the right of pre-emption of close relatives,the effect of the right of pre-emption on third parties,the competition between the right of pre-emption and other rights,and the compensation for close relatives after the right of pre-emption has been infringed.This has led to difficulties in practical application.Therefore,this article will study the legal basis and historical evolution of the right of pre-emption of close relatives,with a view to gaining a deeper understanding of the right of pre-emption of close relatives,and on the basis of this understanding,analyse the problems arising from the application of the right of pre-emption of close relatives in Article 726 of the Civil Code and make some suggestions.The right of next of kin to pre-emption is a right based on the facts of the last thousand years and the current social environment in our country,as well as on unique values.This right is different from other pre-emption rights and has its own unique legal and social value.In terms of the basic elements of the application of the right of first refusal,except for the general situation,when the seller sells the house in the form of auction and divorce settlement,the next of kin can claim the right of first refusal;in terms of the application of the "equal conditions",the relative equal conditions require that the contractual transactions are approximately the same,which should be adopted;in terms of the determination of the equal conditions,the price fluctuation of the house and other circumstances,the right of first refusal should be determined,The seller’s notice period should be set at 15 days prior to the sale,taking into account circumstances such as price fluctuations.In principle,the seller’s notice should be strictly in writing,but may also be in the form of a network,and the content of the seller’s notice should include the specific conditions for the sale of the house.With regard to the external effects of the right of pre-emption of the next of kin,the order of performance of the dual sale contract should be given priority in order to simplify legal relations and save costs.However,the right of pre-emption of the next of kin may be exercised against a third party in bad faith,based on the theory that bad faith is a breach of the principle of good faith,and that good faith should be judged on the basis of whether or not the three persons had knowledge of and respected the exercise of the right of pre-emption by the next of kin.With regard to the order of the exercise of the right of pre-emption by the next of kin,in order to maintain social order,family harmony and kinship relations,it should be ensured that the next of kin have priority in the exercise of their rights if there are no co-owners.