債權效力不動產優先購買權之法律效果

The Effect of in Personam Rights of First Refusal of Real Estate

This study explores the meaning of the effect of in personam rights of first refusal of real estate and the divergence between in personam rights of first refusal of real estate and general in personam rights. This study also discusses the existing doctrine and practice. About the in personam rights of first refusal of real estate, first of all, if a person sells a property against the provision of statutory rights of first refusal and has not transfer the property to the buyer, the buyer cannot claim for registration of transfer after the statutory right holder of first refusal claims to buy. Therefore, in personam rights of first refusal by operation of law are superior to general in personam rights before the third party acquires the property. Secondly, after the seller transfers the property to the third party, in personam right holders of first refusal cannot always demand the seller to compensate in practice. Furthermore, if we hold that rights of first refusal are based on the valid contract between the seller and the third party, in personam right holders of first refusal shall not apply to the court for the revocation of the contract between the seller and the third party according to Article 244 of the Civil Code. If we hold that rights of first refusal are not based on the contract between the seller and the third party, in personam right holders of first refusal may apply to the court for the registration of cancellation of the ownership of the third party based on the conditions of the said provision. In addition, in personam right holders of first refusal may apply for a provisional injunction.