優先購買權爭議問題研究

Issue Study on the Rights of First Refusal

先買權制度是理論及實務上重要問題，不過，既有的研究仍有不足，有許多爭議問題。本研究著重成本效益分析與相關當事人的利益衡量，討論「先買權的行使是否以『出賣人與第三人間買賣契約的有效性』為基礎」、「具物權效力的不動產先買權人得否聲請假處分」、「具物權效力的不動產先買權人請求塗銷登記是否基於保全代位」、「已行使先買權而尚未取得基地所有權的承租人，於租期屆滿後有無占有權源」與「共有物變價分割時，數共有人先買權的競合」。本研究就既有的學說、實務見解予以回應，並提出建議，希望既能合理實現先買權的規範意旨，又能顧及先買權人、出賣人、第三人的利益。

The system of a right of first refusal is an important issue in theory and practice. However, the existing studies are still insufficient. There are many controversies. The cost-benefit analysis is stressed and the interests of the concerned parties are emphasized in this study.  This study discusses “whether the exercise of a right of first refusal is based on the validity of the sale between the seller and the third party”, “whether an in rem right holder of first refusal of real estate may apply for a provisional injunction”, “whether the claim of registration of cancellation by an in rem right holder of first refusal of real estate is based on subrogation for preservation”, “whether the lessee of the building site who has exercised right of first refusal and does not have fee simple absolute yet has the right of possession after the termination of lease” and “the conflict of several co-owners’ rights of first refusal in the case of partition sales of the thing held in indivision” in turn. This study discusses the existing doctrine and practice and makes some propositions in order to achieve the purposes of the rights of first refusal properly and to consider the in-terests of the right holder, the vendor and the third party.