In the * * * relationship, when a * * * intends to transfer its share, other * * * people must exercise the preemptive right, and other * * * people have the preemptive right. There is no relevant provision in the law.
One view is that the transferor decides who has the preemptive right. The reason is that in order to reduce unnecessary disputes and fully respect the ownership of the transferor, it should be decided by the transferor himself.
The second view is to draw lots to decide. The reason is that the second paragraph of Article 16 of the Provisions of the Supreme People's Court Municipality on Auction and Sale of Property in Civil Execution of People's Courts (No.16,No. (2004)) stipulates that "if multiple preemptive rights holders in the same order express their acceptance at the same time, the buyer shall be determined by drawing lots".
The third view is that the preemptive right should be exercised by more than two-thirds of the owners (including the intended transferor). If two-thirds of the * * * owners can't agree, the lottery will be adopted.
The author agrees with the third view. The reason is that Article 97 of the Property Law stipulates that "the disposal of all real estate or chattel owned by * * * and the major repair of all real estate or chattel owned by * * * shall be subject to the consent of more than two thirds of the owners of * * * or all owners of * * *, unless otherwise agreed by the owners of * * *". If there are three * * * people, the buyer who intends to exercise the preemptive right decided by the transferor and the transferee will inevitably form the consent of two-thirds of the * * * people, fully respecting the ownership of the transferor. If there are more than four * * * * owners, only two buyers decided by the transferor and the transferee agree. If there is no consent from other * * * * owners, the buyers who make up more than two thirds of the * * * owners will exercise the preemptive right. The advantage of this approach is that the transferor will no longer participate in the management of property affairs after transferring his share of property, avoiding his subjective likes and dislikes without considering the stability and development of future relations.
If * * * people can't form more than two-thirds of * * * people agree, draw lots. It not only embodies relative fairness, but also avoids and reduces unnecessary disputes in the relationship between * * *. In view of the above situation, it should be the preemptive right of * * * people under the same conditions. If there is a third party who has nothing to do with * * * bidding, the provisions of "equal conditions" shall still be observed. Only under the premise of "equal conditions" can * * * have an interior and a third person.
(2) * * * How to deal with the concurrence of a person's preemptive right and the lessee's preemptive right. * * * The preemptive right of some people and the preemptive right of the lessee compete under the same conditions, and the conflict between them lies in who has the preemptive right. There are two different views on the above problems. One view holds that the lessee has the preemptive right, while the other holds that some people have the preemptive right over the lessee. The author agrees with the latter view. The reason is 1. From the perspective of rights, the preemptive right of * * * comes from the ownership relationship of * * * and has the nature of real right, while the preemptive right of the lessee is based on the lease relationship, which is a kind of creditor's right derived from creditor's right. From the theory that property right is superior to creditor's rights, the priority of the owner is superior to that of the lessee. 2. In terms of legal effect, the law stipulates that * * someone has the preemptive right, the purpose of which is to maintain the stability of the relationship between * * *, and * * someone has a closer interest in the property owned by * * * than the lessee, and his obligations are higher than the lessee, so he also gives priority to * * someone's preemptive right in the principle of consistency between obligations and rights. In addition, the lessee does not have the priority to exercise the right of purchase relative to some people. According to the theory of "sale does not break the lease", the lessee's failure to exercise the preemptive right will not affect the original lease contract. Their rights have not been affected or damaged. To sum up, under the same conditions, the preemptive right of some people is superior to that of the lessee.
(3) Handling the conflict between someone's preemptive right and the bona fide acquisition by a third party. A * * * person fails to fulfill the notification obligation when transferring his * * share, but transfers his property share to a third person. How to realize the preemptive right of people who are interested in buying?
One view is that bona fide acquisition by bona fide third parties should be protected. The reason is that the bona fide acquisition of a third party should be protected from the legislative purpose of protecting transaction security and encouraging transactions. Article 106 of the Property Law stipulates: "If a real estate or chattel is transferred to an assignee who has no right to dispose of it, the owner has the right to take it back; Unless otherwise provided by law, the transferee shall acquire the ownership of the real estate or chattel under the following circumstances: 1. The transferee is in good faith when accepting real estate or movable property; 2. Transfer at a reasonable price; 3. The transferred immovable property or movable property that should be registered according to law has been registered, and the one that does not need to be registered has been delivered to the transferee. If the transferee obtains the ownership of real estate or chattel in accordance with the provisions of the preceding paragraph, the original owner has the right to claim compensation from the unauthorized person. If the parties have acquired other real rights in good faith, the provisions of the preceding two paragraphs shall be referred to. " Therefore, the * * exercising the preemptive right requires the transferor to compensate the losses according to the above provisions.
The second view is that the preemptive right of * * * is an important right set by law to protect * * * people, which has the nature of real right. The bona fide acquisition of the third party and the transferor is based on the creditor's right to acquire the real right. Article 106 of the Privilege Law stipulates that the restrictive condition for the bona fide acquisition of the third party to acquire the ownership of movable property or immovable property is "except as otherwise provided by law". Now that the law has stipulated that * * * someone has the preemptive right. You should protect the preemptive right of * * * people first. The third view is that if the transferred * * pieces of property are movable property that does not need to be registered, the transfer contract between the transferor and a third party shall be deemed valid, and if the transferred * * pieces of property are movable property or immovable property that needs to be registered, the contract between the third party and the transferor shall be deemed invalid. The author agrees with the third view. The reason is to balance the preemptive right enjoyed by some people and the security of third-party transactions on a case-by-case basis. First of all, for movable property that does not need to be registered, setting too many duty of care for the third party will undoubtedly increase the transaction cost and is not conducive to transaction security. At this time, the acquisition of the ownership of movable property that does not need to be registered, and the third party meets the provisions of Article 106 of the Property Law, shall be protected. * * * It is not difficult for some people to regain movable property that does not need to be registered in the market circulation. Therefore, the preemptive right of some people should give way to the goodwill of the third person. But for movable property and immovable property that need to be registered.
* * * Some people have more management obligations than chattels that don't need to be registered, and they are more closely related to chattels than third parties, so it is more difficult for them to regain them. For the above two properties, it should be confirmed that the transfer contract between the transferor and the third party is invalid, and the priority is given to the * * * person.
Reason:
1. Transfer of movable and immovable property to be registered. The third party shall perform the duty of care in the transaction. If all the shares of real estate in * * * are transferred, because there are several owners or users registered in the real estate register, the third party should know that other * * * people have the preemptive right. At this time, the third party also signed a transfer contract with one of the * * * people, which proved that it violated the legal provisions, so the transfer contract should be deemed invalid.
2. The pre-emptive right of * * * stipulated by law will not be suspended. Since the preemptive right of * * * is set by law, it should be guaranteed to be realized. If the contract between the third party and the assignor is confirmed to be valid. * * * How can someone's preemptive right be realized? * * * If someone asks the transferor to bear the responsibility for the lease contract on the basis of * * *, it is difficult to meet the requirement of asking the transferor to bear the responsibility for breach of contract on the grounds of breach of contract, because most of the * * * relationships have no provisions on preemptive right; If it is based on tort liability, its tort consequences are difficult to determine in practice, which makes it difficult for some people's claims to be protected. If the responsibility is returned based on unjust enrichment, there is no clear factual basis and legal basis. To sum up, the protection of creditor's rights ignores the fact that the right to purchase by public announcement has the nature of real right. Make * * * someone's legal right to enjoy the preemptive right completely suspended.
3. It is not conducive to the stability of the * * * relationship, but promotes the escalation of contradictions. * * * Some people come from specific social relationships, such as relatives or long-term partners. * * * Facts have proved that there is a dispute between the claim for preemptive right and the claim for bona fide acquisition by a third party. If the protection of the third party to enter * * * is related, it can only be based on the contradiction between the original owner and the transferor, plus the contradiction between the original owner and the new owner, which makes the relationship between * * * more unstable and more inconvenient to manage the property of * * *.