中国古代优先购买权制度研究

发布时间：2018-05-31 17:53

本文选题：优先购买权 + 优先权　；参考：《郑州大学》2011年硕士论文

【摘要】：所谓古代优先购买权制度,是相对我国法律近代化以后的优先购买权而言,即指所有人出卖田宅等财产时,特定民事主体依成文法或习惯法,在同等条件下优先于他人购买特定财产的权利。中国古代的优先购买权制度作为传统民事规范的组成部分,在我国历史上源远流长,不仅种类繁多,内容丰富,而且制度完备,颇具特色。比如独具传统特色的亲邻优先购买权、典权人优先购买权等优先购买权制度,不仅规定了权利行使的主体、顺序和条件,还规定了双方的权利、义务以及权利行使的形式、限制等细节问题,而且这些规定随着经济发展和社会需要的变化不断调整得以发展、完善。众多的优先购买权和中国古代的国情相适应,或有利于维护家族利益和政治统治,或着眼于适应经济发展以及社会稳定,或符合交易经济原则和减少交易纠纷,既反映了我国当时的政治制度和社会特点,也满足了经济生活的需要,具有一定的合理性和必要性。即使在社会结构发生重大变化的今天,有些优先购买权仍然作为一项符合人们交易习惯、具有相当法理基础和独特价值的法律制度得以存续和发展,在我国成文法或习惯法中发挥着巨大作用。本文由三部分组成,即引言、正文和结语。引言部分交代了文章的选题意义、研究现状和创新之处。正文作为主体部分,首先概括叙述了优先购买权的相关状况,归纳总结了中国古代优先购买权的概念和特征,并对优先购买权和优先权相关概念进行了界定和区分。其次,对中国古代的优先购买权做了详细的梳理,以主体为标准划分为亲邻、典权人、承佃人、上手业主、共产业主以及预买契约债权人等各具特色的优先购买权,并在论述过程中涉及到历史演变、权利竞合、权利行使方式、限制等方面的问题。再次,以古代优先购买权为例,对这一制度的性质和类型归属进行了深入的法理分析,认为其实质是优先缔约的请求权。最后结语部分,认为古代优先购买权制度在当时具有一定的法理依据和制度价值,并提出判断一种法律是否是良法,关键要看它是否符合当时的社会需要,能否对当时的社会经济起到促进作用,以求有助于更理性、客观的对待中国传统的民法规范和理念。
[Abstract]:The so-called system of preemptive right in ancient times is relative to the preemptive right after the modernization of Chinese law, that is, when the owner sells the property such as farmland and house, the specific civil subject is in accordance with written law or customary law. The right to purchase a particular property under the same conditions. As a part of the traditional civil norms, the system of preemptive right in ancient China has a long history in our country. It not only has many kinds, rich contents, but also has complete system and features. For example, the system of preemption rights, such as the pro-neighbor preemption right, the pawnbroker's preemptive right, which has unique traditional characteristics, not only defines the subject, order and conditions of the exercise of the right, but also specifies the rights, obligations and forms of exercise of the rights of both sides. Restrictions and other details, and these provisions as economic development and social needs are constantly adjusted to develop, improve. Numerous preemption rights adapted to the national conditions of ancient China, or conducive to the maintenance of family interests and political rule, or geared to economic development and social stability, or consistent with the principles of the trading economy and the reduction of trade disputes, It not only reflects the political system and social characteristics of our country at that time, but also meets the needs of economic life. Even at a time when the social structure has undergone significant changes, some preemption rights have survived and developed as a legal system that accords with people's trading habits, has a considerable legal basis and is of unique value. It plays an important role in the statutory law or customary law of our country. This paper consists of three parts: introduction, text and conclusion. The introduction explains the significance of the topic, research status and innovation. As the main part, the text firstly summarizes the relevant situation of preemptive right, summarizes the concept and characteristics of preemptive right in ancient China, and defines and distinguishes the related concepts of preemptive right and priority. Secondly, the preemptive right in ancient China is sorted out in detail. According to the criterion of subject, it is divided into preemptive right, pawnbroker, tenant, owner, communist owner and creditor of pre-purchase contract, etc. In the process of discussion, it involves some problems, such as the historical evolution, the concurrence of rights, the way of exercising rights, the limitation and so on. Thirdly, taking the ancient preemption right as an example, the author makes a deep legal analysis of the nature and type of this system, and concludes that its essence is the right of claim of preferential contracting. In the last part of the conclusion, the author thinks that the ancient preemption right system had certain legal basis and system value at that time, and proposed to judge whether a kind of law is a good law, the key depends on whether it meets the needs of the society at that time. Whether or not to promote the social economy at that time, in order to help more rational, objective treatment of Chinese traditional norms and concepts of civil law.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923;D929

【参考文献】