论共有人优先购买权的性质及效力

On the Essence and Effectiveness of Purchasing Priority of Joint Owner

优先购买权作为一项特殊的民商事制度,有着特别重要的意义。共有人优先购买权是一种财产权,既得权,形成权,但核心的性质应该是形成权。对于多个共有人存在的情况,在共有人内部之间转让标的物就不存在优先购买权的问题。对于在外部转让的情况下,会存在对外合同的效力瑕疵情形,同时还包括多个共有人之间在同时要求行使优先购买权时的效力。为了维护民事公平的原则,对第三人的利益也要做出相应的平衡性保护,这就有必要通过登记制度来确定共有人优先购买权的效力。

Purchasing priority is important as a special civil and commercial system. Purchasing priority of joint owner is property right, vested right and formation right. Formation right is the core essence. As for the situation with several joint owners, the transfer of objects among joint owner does not apply purchasing priority. For the external transfer, there is a situation that has effectiveness flaws in external contract, including the effectiveness when several joint owners ask to enjoy their purchasing priority at the same time. In order to keep the principle of civil justice, the interest of the third party should also be protected evenly. So it is necessary to regu- late the effectiveness of purchasing priority of joint owners through register system.