| Summary: | 碩士 === 國立高雄大學 === 法律學系碩士班 === 103 === Abstract
Preemption of real estate dispersion in civil law, the Land Law and related special regulations, as co-owner preemption of real estate, rent land for housing preemption, the first refusal of arable land, preemption of dian-holder, the preemption of distinguish between all constructional base of co-owner, the preemption of distinguish between all constructional of co-owner, emphyteusis of pre-emption, Preemption of Failing urban planning land use , the preemption of adjacent to the existing arable farming land and other pre-emptive rights ... etc.
However, with the provisions of Article of the Land Act 34-1 of the terms, intended to limit the total number of people increased, simplifying total relationship, so that the land was all alone to improve efficiency in the use of real estate, and the Land Law Article 104, paragraph 1, and the Civil Law Act 462-2 of the relevant provisions, aimed at promoting home ownership thereof on the base all the people together under one head, significant economic benefits to the land-use and simplify legal relations; and as for agricultural land reclassified provisions of Act 5 tie in expanding agricultural land management scale, maintaining agricultural land reclassified the results, but also because of this, In addition to the terms of preemption , there are provisions of the order of preemption , in order to reach the above legislative intent.
But people who have the preemption, usually because the co-owner or owner may sell real estate, intentionally or not know the terms did not notice them, which led to preemption people unable to exercise the preemption to buy the right to priority support according to law, and therefore the seller the transfer of ownership of immovable property registered with a third person, so that the relationship can not use the real estate as the legislative intent expect attributed to efficiency or the use of simple, but tends to be more complex. It is a breach of the law when the seller did not notice the preemption, should give the legal effect for Registration back to the original owners or be compensated to the preemption, however, the same preemption violations, it was inconsistent of legal interpretation between the theory and the practice, led to different legal effect. The effect in on property is different from claims,
The difference between the ways is the lawsuit type the former can ask the seller and the buyer into the legal effect for Registration back to the original owners, the latter can only claim damages. Where the interests of distinction？It is interesting to be explored.
In addition, the court forced implementation the real estate of the co-owner, it is also different from private trading, although the Supreme Court considered the forced implementation also subject to preemption of people's legal notice regulations, the people of preemption can exercise the preemption.
But if court didn’t notice the people of preemption, how dose the preemption people claim for his damage?
Thus we will start with the kind of preemption and co-owner of the preemption, it continue the discussion the legal effect in the execution of the program while the co-owner can not to exercise the preemption.
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