论私法中的优先购买权

Right of Preemption in Private Law

本文系统地考察我国现行私法中的优先购买权。在考察它的含义、分类、性质和特征之后,通过法律解释和漏洞补充的方法,本文详细讨论了优先购买权的行使要素,包括出卖人之出卖标的物、出卖人之通知义务、同等条件和行使期限。之后,本文讨论了优先购买权的行使效果和权利人的救济。本文的最后试图解决几种优先购买权之间的冲突,并平衡优先购买权制度与民法上的其他制度。

This article reviews systematically all current provisions of right of preemption within the private laws in China and expounds the meaning,the classifi- cation,the nature and the characteristics of fight of preemption,reflecting its values within the whole system of the private law.Then through legal interpretation of the current provisions and filling their lacunae,this article discusses the elements for exercising fight of preemption,which include the subject of matter sold by the sell- er,seller's duty to give notice,the equivalent conditions and the time limitation, thus providing a set of precise,reasonable and effective rules for the persons who exercise right of preemption.In addition,it focuses on the effects of right of pre- emption and its twin problem i.e.the remedies for the person whose right has been infringed,which is essential for protections of the right.This article lastly tries to resolve the conflicts of several rights of preemption and to balance right of preeimp- tion and other principles in private law since such conflicts constantly occur in prac- tice.