按份共有人优先购买权若干争议问题探析

A Study of Some Arguable Problems on the Right of Preemption of Co-owner by Fractional Shares

按份共有人优先购买权与按份共有关系相始终,无需公示就具有对抗第三人的效力。在所有权以外的其他财产权的准按份共有关系中,除地役权和担保物权的准按份共有之外,均得适用按份共有人优先购买权制度。行使该权利的结果,可使权利人优先于第三人取得被出卖的共有份额。在多数按份共有人依"多数决原则"出卖共有物时,不同意出卖的共有人对同意出卖的共有人所持的共有份额不享有优先购买权。

The right of preemption of co-owner by fractional shares comes into existence with the co-ownership by fractional shares.It can get the efficiency to resist the third party without publicity.In the fields of the other kinds of joint property besides the co-ownership,except the quasi-co-ownership of easement and real rights for security,the right of preemption of co-owner by fractional shares is also applicable.As a result of the exercise of the right,the co-owner has a priority to the third party to obtain the transferred fractional shares.When the majority of the co-owners by fractional shares decide to sell the joint property under the majority rule,the co-owner who disagrees to sell the joint property has no right of preemption to the fractional shares owned by those who agree to sell.