优先购买权中转让人的利益失衡与校正

Imbalance and Correction of the Transferor's Interests in the Right of Pre-Emption

我国民商法规范中存在多种不同类型的优先购买权。这些优先购买权制度中出现了转让人与优先权人之间利益关系的失衡,需要从整体上进行价值反思,并从单方视角转向双方视角,不仅要关注优先权人的利益,更要关注转让人的利益。从转让人权利与义务的区分构造看,其负担的义务主要为程序性义务,实体性权利则没有发生增减变化,蕴含着转让人权益不受损害的基本立场。基于合同订立与合同履行二阶段区分的法理,同等条件不足以保护转让人利益,加入同等履约能力才能使转让人利益不受损害。同时,基于债务人变更不应损害债权人利益的法理,转让人有权要求优先权人提前清偿债务或者提供相应担保。在多数权利人行使优先购买权时的场合,转让人享有选择合同相对人的权利,多数优先权人对转让人应该承担连带责任。优先购买权是为权利人提供优先于第三人的交易机会,转让人未履行通知义务或者有其他妨碍优先权人行使购买权情形的,可能导致强制缔约责任或者损害赔偿责任。

There are various types of rights of pre-emption in China's civil and commercial law.An imbalance exists in the interests of the transferor and the person entitled to the rights of pre-emption in such systems,which requires a holistic value reflection and a shift from a unilateral perspective to a bilateral perspective.It is necessary to not only focus on the interests of the person entitled to the rights of pre-emption,but also on the interests of the transferor.With regard to the distinction between the rights and obligations of the transferor,the obligations are mainly procedural,while there is no increase or decrease in the substantive rights,embodying the basic position that the transferor's rights are not jeopardized.Based on the legal theories in distinguishing the conclusion and performance of a contract,equal conditions are not sufficient to protect the interests of the transferor.Only by adding equal performance capabilities can the interests of the transferor be protected from detriment.At the same time,based on the legal theory that the change of the debtor shall not harm the interests of the creditors,the transferor has the right to request that the person entitled to the rights of pre-emption to pay off the debt before it is due or provide corresponding security.Where the majority of right holders exercise the rights of pre-emption,the transferor has the right to choose the counterparty to the contract,and the majority of pre-emption right holders shall assume joint and several liabilities to the transferor.The right of pre-emption is to provide a trading opportunity to the right holder prior to a third party.If the transferor fails to fulfill the obligation of notification or interferes with the exercise of the pre-emption right of the right holder,it may lead to the obligation of compulsory contracting or the liability for damages.