我国物权法上共有份额对外转让规则研究

发布时间：2018-10-18 13:32

【摘要】：伴随着《物权法解释一》对按份共有法律规则的进一步规定,我国物权法上共有份额对外转让规则更加完善和清晰。但是,关于对外转让的含义、优先购买权的权利性质和保护范围、行使方式和期限、同等条件和实质性变更的含义以及如何在诉讼中救济等问题仍然有待进一步研究。本文通过我国法和外国法的比较,从按份共有人优先购买权的正当性出发,基于出让人、其他按份共有人和第三人之间的利益平衡,认为份额对外转让中仅在有偿转让的情况下可以行使优先购买权,且不宜要求出让人已与第三人达成买卖合同,只需出卖人形成转让意向并与第三人达成初步的订约条件即可;按份共有人的优先购买权是一种形成权,适用除斥期间;价格是判断同等条件的核心因素,至于履行方式,如果出让人与第三人的买卖合同中允许分期付款,基于同等条件的形式要求,也应当允许分期付款,但是应当提供担保;出让人出让份额的行为属于有权处分,不适用善意取得;权利人可视情况通过确认合同无效、申请撤销合同、请求履行合同或损害赔偿救济自己的权利。
[Abstract]:With the further stipulation of the rules of the law of ownership by share, the rules on the transfer of common shares to foreign countries in the law of real rights in China are more perfect and clear. However, the meaning of foreign transfer, the nature and protection scope of preemptive right, the way and duration of exercise, the meaning of equal conditions and substantial changes, and how to remedy in litigation still need further study. Through the comparison between Chinese law and foreign law, this paper starts from the legitimacy of the preemptive right of the co-owner, based on the balance of interests between the transferor, the other co-owners and the third party. It is considered that the transfer of shares to foreign countries can only exercise the preemptive right in the case of a paid transfer, and it is not appropriate to require the transferor to have entered into a contract of sale with a third party, as long as the seller has formed an intention to transfer and reached a preliminary contractual condition with the third party; The preemptive right of the co-owner is a right of formation, applicable except for the period of reprimand; price is the core factor in judging the same conditions. As for the manner of performance, if installments are allowed in the contract of sale between the transferor and the third party, On the basis of the form requirements of the same conditions, installment payments shall also be allowed, but security shall be provided; the act of assigning shares to the transferor is entitled to disposition and does not apply to bona fide acquisition; the obligee shall, by confirming the contract, be invalid, as the case may be, To apply for rescission, performance of the contract or damages to remedy one's own rights.
【学位授予单位】：山东师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2

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