エジプト民法典における先買權の立法目的

Abstract

Pre-emption in Islamic law primarily refers to a right of joint owners of immovable property to obtain, in preference to the others, the share of the property that one of them sold to a third party, by paying the price to either the purchaser or seller, even against the will of the purchaser. According to the Hanafi school, the owners of adjoining properties, alongside the joint owners, also have the right of pre-emption. In any case, the purport of the system was to protect the original joint owners from various problems that might be caused by a new participant. On the other hand, as pre-emption was considered as an encroachment on the property rights of the purchaser, various restrictions on it's exercise had been established within the framework of pre-modern doctrines. However, the system survived the modernization of laws in Egypt from the 19th century onward. Moreover, the Laws of Pre-emption (1900 and 1901), which were established in order to make up for the lacunae of law with regard to preemption found in the old civil codes, and the current civil code (1948), which is fundamentally an extension of these Laws, expanded the scope of pre-emption. In short, the pre-emptors under the current code are the usufructuary and the bareowner, and also both parties of a long-term lease (hikr) as well as the joint owners and the owners of adjoining properties. In contrast, both the Laws of Pre-emption and the current civil code have placed severe restrictions on pre-emption with regard to the owners of adjoining properties. These legislative innovations did not result from the historical developments or changes in pre-modern Islamic doctrines of law. In the process of compiling the current code, there appeared considerable opposition to the continuation of the system of pre-emption. The aim of the legislator who, despite this opposition, introduced these prescriptions was completely different from the legislative purport of pre-emption in Islamic law. It can be said that pre-emption in the Egyptian civil code is a unique system distinct from that of Islamic law.