On The Remedy Of Mistaken Property Registration

When property registration is mistaken, the injured party can seek the relief through many kinds of ways, such as the corrected registration, objection registration, and damage compensation. The current relief system of mistaken property registration can not join with the related systems. Because the rule of law is not operational, the injured party can not be provided the adequate and timely relief. At present scholars are weak at the theoretical study of relief system of mistaken property registration. As a result of the lack of consideration of local resources, they can not provide a clear direction for the system design and a fair program to solve the problem for the administration of justice. Combined the cases taking place in the practice of our country,this thesis makes further studies on the remedy of mistaken property registration through the method of functional analysis and cost-effectiveness analysis. In addition to the introduction and conclusion, the full text is divided into four chapters.The first chapter is the principle of the remedy of mistaken property registration. In this chapter, the author tries to resolve the meaning, the nature and value of the remedy of mistaken property registration to lay the foundation for the study of the specific relief. The mistaken property registration refers to the inconsistency of the matters recorded and the true state, including three types of mistaken registration. The remedy of mistaken property registration means the relief to the injured party due to mistaken registration, including public relief and private relief. The nature of the remedy of mistaken property registration depends on the nature of the nature of property registration and the review mode. Property registration is the main public method to the civil subject, and is an important means of management to the state. The review of property registration should not only consider the costs and benefits of the private sector, but also consider the costs and benefits of the country. The formal review and real review can not resolve complex situations, so the eclectic departure has a relatively practical rationality from realism. Because there are both private relations between equal subjects and public relations between the applicant and registration agencies, the civil remedies and administrative remedies must be taken into account at the same time for the remedy of mistaken property registration. Property registration has been considered an administrative act in our county and mistaken property registration as an administrative dispute. The necessary and importance of civil remedy to the mistaken property registration has been neglected. This concept must be changed. Our legislation should strengthen the function of civil relief and limit the scope of administrative relief.The value of the remedy of mistaken property registration is a rational allocation of the risk of mistaken property registration, and the rule to resolve the conflict between the party enjoining real rights and the third party of transactions should be established. The legislation does not always give priority to the protection of the third party in the situation of mistaken property registration, but the different legal consequences are given under different circumstances. As the result of the difference of social needs, values and cultural traditions, there are many modes to realize the value of the remedy of mistaken property registration. The mode of credibility of registration is carried out in Germany, with a focus on the protection of bona fide third parties. Swiss implements the mode of immovable property acquired in good faith, with the equal treatment to the party enjoining real rights and the third party of transactions. France has created the mode of theory of manifest successor and possessor, trying to protect the trading interests of third parties. Japan applies an analogy of false behavior, focusing on the party enjoining real rights. The United States has put title insurance into practice, through the market mechanisms to protect a third party of transactions. Australian has carried out the mode of compensation fund of mistaken registration, protecting the party enjoining real rights.Chinese Property Law did not adopt the model of the registration credibility in Germany and the mode of real estate acquired in good faith adopted by Swiss, instead of using the integration mode of the movable and immovable property acquired in good faith. This model respects the status of property rights registration, in line with the tradition of our country’s legislation and the existing property system between husband and wife. It also resolves the problem of registered movable property acquired in good faith. Registered property acquired in good faith is closely related to the protection ways to the reliance interest of administrative counterpart. Chinese Property Law provides the registered property acquired in good faith, which is conducive to the concept changes of rule of executive law. When registered property acquired in good faith is made, the registration agencies will not be able to revoke the registration. It should adopt the survival method to protect the administrative reliance interest.The second chapter is the correction remedy of mistaken property registration. This chapter firstly interprets the corrected registration in accordance with the application through the thinking of rights of claim, and then explores the value, subject and procedures of corrected registration in accordance with power, and finally analyzes the proceeding relief of corrected registration. The parties registered and stakeholders can apply for corrected registration. The right to apply for a corrected registration refers to the right of the party registered. The right to request a corrected registration refers to the right of interested party to request the consent of corrected registration. The nature of the right to request the correction of registration is closely related to its legal basis. The provisions are not the same in the word. Under the legislation of debt formalism, the right to request the correction of registration can be regarded as a special type of the right to request excluding jeopardizing. As a type of property claims, the right to request the correction of registration does not apply to the extinctive prescription. The right to request correction of the registration is also limited by the acquirement prescription. The right to request the correction of registration is controlled by the principles of right extinguishment. The party who enjoys the right to request the correction of registration does not exercise his right in a long time, he can exercise no longer his right based on the principle of good faith, because the special circumstances is sufficient to enable his obligor to trust him. The right to request the correction of registration should comply with the principle of legality. It should be not exercised to circumvent the mandatory provisions of the country. Mistaken property registration can not reflect the true state of the property, impacting the realization of national management goals. When parties have not applied for the correction of registration, the registration agencies can correct the mistake of registration based on the specific terms, which is also the requirement of principle of administration according to the law. When the application can not be implemented to correct the registration process or the applicant is unable to take the remedial procedures, the registration is corrected in accordance with terms in Germany. When the error or omission is the result of fault of registrar, correction registration in accordance with the terms of reference is carried out in Japan. According to Swiss law, as long as any party does not apply for correction, registration authorities can correct the mistaken property registration in accordance with terms. In Chinese Taiwan region, even if the mistake is not the fault of the registration staff, or the error is caused by the pure fault of applicant, the registration authority can also correct registration in accordance with terms. It is good to be cautious on the statutory reasons of corrected registration in accordance with the terms of reference to avoid the public power excessively interference private rights. Chinese future legislation should provide that registration agencies can correct the mistaken registration when documents supporting that the registration error is the result of fault of registration staff can be found, or the national or social interests are damaged. The approval process and notification procedures are needed in order to prevent abuse of corrected registration in accordance with the terms of reference, in pursuit of the balance of the objectives of public goals and private interests.It is needed to distinguish the right to apply for a corrected registration and the right to request the correction of registration to realize the action relief. When the application meets the conditions of corrected registration, and registration agencies refuse to correct without good cause, the right to apply for a corrected registration is damaged under this circumstance, the applicant can be remedied through administrative proceedings. Administrative review of the trial is conductive to review the legality of administrative act. The goal of relief can not be achieved when registration property is not illegal, and the right state is false. The problem of ownership of property should be resolved through the civil action. The party can apply for correction registration based on the court decision. This means of relief is in line with the private nature of the right to request a corrected registration, and does not contradict with public authoritativeness of property registration. It has a good deal with the relationship between the judicial review and the evidence review, which has been gradually recognized in practice. While this relief channel has a distinct advantage, but the current land disputes in our country is indeed be resolved through the administrative decisions and administrative proceedings. Administrative incidental civil action or civil administration litigation do not differentiate the object of relief, which will lead to the confusion in the proceedings. It is impossible to resolve the intertwined civil and administrative cases caused by registration errors in this way.The third chapter is about the protested remedy of mistaken property registration. This chapter includes the value of registration for protest, the procedure of registration for protest, the effect of registration for protest. In Germany, registration for protest is for protecting the real owner and warning the third party in transaction. In Japan, registration for protest is for protecting the third party in transaction and protecting the original owner indirectly. Though two systems have different aims and values, they both protect the bona fide third party and the real owner. Registration for protest and registration for Seizure are belonging to registration for restriction, which are different. Registration for protest is the auxiliary mechanism of registration for correction, which is aimed to registration for correction. Registration for seizure is protective measures in procedural law, which is aimed to plead of litigation. Weather registration for seizure can instead of registration for protest is the legislative choose, which is decided by the social need and current system. In Chinese Code of Civil Procedure, the conditions and procedures of protective measures about property are prescribed strictly, which is unsuitable to the character of registration for protest that is temporary remedy. So registration for seizure can not instead of registration for protest.In Chinese Property Law, registration for correction is the pre-procedure of registration for protest. Registration for protest adopts the unilateral application system. Applicant of registration for protest should supply the suitable guarantee for the interests of registered person. If Land Registry finds the mistake made by illegal action In Germany, it can make the registration for protest itself. The Land Registry can make registration for protest in some special situation, for example another subject applies the registration to the same object as one subject is applying the registration. Though Chinese Property Law does not stipulate that the Government agency can make the registration for protest itself, registration agency can make the registration for protest itself for the specific reasons. Because current system of registration is between the system of privilege registration and Torrens system, the stipulation about effect of registration for protest can not follow the provisions in Germany. Specifically, if registered person deals with the applicant registration property, registration agency should suspend the conduct but can make the notice registration.If the conflict happened between the registration of protest and the performing registration,the registered agency should notice the applicant and suspend the conduct of registration.The effect of registration of protest and is higher than the effect of registration of seizure,so the agency can not execute the registered property of protest. During the period of registration of protest, registered person can apply to write off the registration of protest if applicant of registration of protest doesn’t sue; court doesn’t receive the application or court reject the application.The forth chapter is about the compensation for relief of mistaken property registration. This chapter mainly deals with the compensation for relief to victim from the registered agency. The nature of registered agency’s responsibility of compensation depends on the nature of registered agency, and refers to the source of compensation. From the current code, the responsibility of compensation from registered agency is belonged to the compensation from government, which should comply with the principle that someone making the illegal action should assume the responsibility. If our registered agency was reformed as the institution self-financing and the fund of compensation was funded, the responsibility of compensation is one kind of responsibility of civil compensation, which should comply with the principle that someone making the mistaken action should assume the responsibility. Registered agency should assume the responsibility of investigation strictly to the material that litigant can’t clarify if don’t depend on the registered agency. The unreason action of registered agency leading to the damage is the precondition of registered responsibility of compensation. In the judicial practice, the causal relationship of executive compensation and tort compensation should be considered. By the provision of State Compensation Law, the responsibility of compensation is limited to the direct property damage. The victim should request the civil infringer to assume the responsibility because the system that registered agency request the civil infringer to assume the responsibility doesn’t exist in our current law. The victim can sue the infringer and the register agency at the same time.But the lawsuit about executive compensation should be suspended before the civil procedure is ended. The victim can sue the register agency when civil infringer is considered as the third party, in which court can adjudicate that the civil infringer should assume the responsibility firstly and the registered agency assume the added responsibility. The amount registered agency assuming the responsibility should depend on the factor such as registered agency’s function in the process of making damage and result. Registered agency should assume the responsibility of compensation deepening on the share, if registered agency makes the registered mistake because registered agency doesn’t review the false material negligently. Registered agency should assume the responsibility of compensation totally, if registered agency makes the registered mistake because registered agency makes the malicious collusion with the registered applicant.