论利益衡量视角下的按份共有人优先购买权

一般认为,赋予按份共有人在其他按份共有人向外转让其共有份额时的优先购买权,其制度设计旨在保护按份共有关系中其他共有人的“控制利益”或“在先利益”,即封闭或者限制外部人进入共有关系的渠道.此种解读忽略了优先购买权制度设计的另一目的——衡平转让人,拟购买共有份额的受让人与其他按份共有人之间的利益关系.优先购买权除能赋予其他按份共有人“在先利益”外,还有保护转让人获得最大转让利益的功能,而这些功能最终都是服务于按份共有人共有利益的最大化实现.按此理解,优先购买权可解释为优先购买请求权而非优先购买形成权.其他按份共有人优先购买权能否实现取决于转让人之转让意思最终是否会发生修改,从而在制度设计上实现优先购买权的利益衡平结构的作用.

Research on The Preemptive Right of Several Co-owners in the Perspective of Interest Balancing

it＇s generally suggested that the aim of preemptive right of several co-owners is to preserve the coowner＇s ＂controlling interest＂ or ＂prior interest＂, by closing or restricting the channels for outsiders to enter the mutual relationship. This interpretation omits another aim of the preemptive right of several co-owners regime, i.e. to balance the interest between transfers, transferee and the several co-owners. The preemptive right of several co-owners regime can not only endow the several co-owners ＂prior interest＂, but also maximize the transferred interest, which will also make the common interest of all several co-owners maximized. From this view, the preemptive right of several coowners can be interpreted as right of claim, not right of formation. Whether the preemptive right of several co-owners can be realized, it depends on the transferring desire of the transfers, which will ultimately achieve the aim of balancing the interest among transfers, transferee and the several co-owners.