| The institution of notice registration has a long history in foreign civil law and the unique function of guarantee to the obligatory claim that is for the purpose of the change of real right. However, it is brand new in our civil law. The regulations of current law on notice registration have some questions such as crude and improper regulations so it is difficult to develop its functions in the application of law. Although domestic scholars reached some common views on the research of notice registration, most of them have problems as follows:stop after getting a little knowledge of notice registration, select one side to study, lacking of depth, breadth, systematicness, and regarding an entity as superior to procedure. The most significant point is that they did not have any systematic research achievements involving both the substantive and procedural aspects of notice registration. The author selected real estate notice registration as topic and pursued a creative, thorough, and systematic research because of the development of social practice, the need of legal perfection and the deepening of theoretical research of notice registration. In addition to the introduction and conclusion, the paper is divided into five chapters.Chapter one analyses on the concept and character of real estate notice registration. The emergence of notice registration is to settle the same or similar social practices in different countries and regions. However, different countries and areas vary in existing legal systems and legal traditions, which leads to that the concept of notice registration has similarities as well as distinctions in intension and extension. While defining the concept of notice registration, scholars of different countries and areas refer to purpose, preservation object, premise, means, and concept of genus etc. but they stress one of them in specific practice. While defining the concept of notice registration, scholars of our country all have definite purpose and preservation object but vary in definite premise and means. The author prefers to select registration as the concept of genus. Natures of notice registration such as selecting purpose, security object, and means distinguish notice registration from other concepts in the same genera. The range of thinking object of notice registration should be right of obligatory claim for the purpose of the change of real property. The concept of notice registration should be defined as a registration that is to conserve right of obligatory claim for the purpose of the change of real property, protect it from impairment of the debtor’s act of disposition and grant it validity of real rights. With regard to the nature of notice registration, reviewing domestic and foreign discussion, scholars’thought may be listed as follows:analyze the nature of notice registration and analyze the nature of right to notice registration. The author considers that analysis of notice registration ought to compare it with real registration and conclude that notice registration is a special registration which is distinct from real registration. In order to reveal its characteristics, it is necessary for scholars to analyze the nature of right to notice registration and other qualities. The nature of notice registration is temporary registration which grants registered right of obligatory claim for the purpose of the change of real property validity of real right and guarantees to realize the right of obligatory claim. It is a guarantee means of credit. There is distinction between notice registration and real registration, objection registration and seal registration.Chapter two demonstrates the value and functions of real estate notice registration. The needs that parties in the change of real property for the change of real rights security and the attributes of substantive law and procedural law of notice registration determine that the values which notice registration directly reveals and guarantees should be safety and efficiency. Safety places emphasis on the protection of transaction. Efficiency consists of substantive efficiency and procedural efficiency. The standard design of notice registration ought to achieve the optimization of configurational effect of substantive rights and obligations as well as the optimization of configurational effect of procedural rights and obligations and finally realizes the optimization of comprehensive efficiency. Social functions of notice registration are closely linked with its certain legislative purpose, value orientation and social needs, including guarantee, transaction security, efficiency promotion and information service. The functions of notice registration are organic links and coordinate each other. They unify under the implementation of values of notice registration, guarantee the realization of the claim of notice registration preservation and finally establish order of market transaction.Chapter three analyzes the object of real estate notice registration. While defining the object of notice registration, countries and areas that are regulated by notice registration primarily base on the alteration mode of real right, taking other factors into consideration. For example, the right itself, whether the real right has registration ability or not, whether it is able to register in time or not, whether the target has irreplaceability or not. Domestic scholars have bifurcation in determining the object of notice registration. From an ideal view, we should adopt registration validity doctrine of the change of real property right and regulate the object of notice registration on the basis. Real property right includes house ownership and mortgage, construction land use right and its mortgage and so on. The reasons of these rights are listed as follows:the housing levy compensation agreement, the repurchase housing sale and purchase agreement, the preemption right of real estate agreement etc. However, claims for the purpose of change of real property right cannot be registered in time with a need for guarantee that should be permitted to apply notice registration. Our leasehold of real estate is an obligatory right without registration ability and cannot become the object of notice registration. Construction project priority of claim is a legal security interest without registration. Although legislators may grant it registration ability, it should be registration confrontation effect. Therefore, construction project priority of claim cannot be the object of notice registration.Chapter four studies the effect of real estate notice registration. With regard to the effect of intermediate disposition, the practice of current legislation should be abolished while the German approach should be adopted. The effect of becoming impairment by intermediate disposition is that real right of the obtained is incompatible with the real right caused by notice registration preservation claim. Specific types of intermediate disposition include dispositions are done by legal action as well as compulsory execution without levy. The result of impairing intermediate disposition is that it does not have the effect of real right or affect the validity of legal action. Notice registration obligee will directly ask the obligor to carry on real registration once its conditions are obtained. Notice registration should be carried out when real registration is made by the registration office. In cis-position preservation effect, domestic scholars consider its representation as that prospective effect of registration traces back to the moment of notice registration after the notice registration of real estate ownership transfer claim. The cis-position of German law is a unique system of real estate which aims at the limited property rights and bases on registration order. These limited rights of things are able to simultaneously coexist on the same real estate. They have competitive relationship because of different cis-position. Therefore, the cis-position with previous preservation has great significance. Generally.The cis-position preservation effect of notice registration only occurs among several limited rights of things that can be coexistent on the same real estate. The stipulations of cis-position preservation effect ought to be included in our legal system. Only when the real registration construction land use right mortgage of notice registration and the third party’s construction land use right mortgage are coexistent, is cis-position preservation effect necessary to be applied. In complete effect, our Real Right Law should grant notice registration the effect of excluding bankruptcy administrator’s disposition, clearly stipulate the special effect of notice registration in bankruptcy proceedings in Enterprise Bankruptcy Law, and grant the preservation claim of notice registration unique legal status in bankruptcy proceedings. When the third party impairs the claim of notice registration by factual disposition or has the risk of impairment, the obligee of notice registration is entitled to apply Article35of Real Right Law and possess the claim for obstacles removal or the claim for risk elimination; when the third party infringes on the claim of notice registration and cause damages, the obligee of notice registration is entitled to apply Article37of Real Right Law and possess the claim for damage compensation.Chapter five studies the occurrence and elimination of notice registration. In the occurrence of notice registration, this paper analyses its establishing elements and bona fide acquisition of notice registration. On the establishing elements of notice registration, the consent of persons involved in notice registration is more reasonable than notice registration convention of our law. In order to solve questions that the persons involved in notice registration do not agree on notice registration, our law should use false disposition of comparative law for reference, combine it with the property preservation of our civil procedure law, and stipulate that notice registration obligee is entitled to apply for judgment of property preservation from the court and then apply for notice registration on these grounds. As for notice registration of the advance sale of commercial housing, our law should directly stipulate that the advance seller of commercial housing has some obligations. For example, agree on notice registration and accept the commission of the advance purchaser of commercial housing for notice registration. When it is recorded in the register, notice registration takes effect. On registration procedures, the notice registration obligee should be granted registration claim and to apply for registration unilaterally. In addition to documentary evidence of notice registration occurrence and identification paper of both parties, he or she should submit the consent form of notice registration obligor. However, in the registration application of the advance sale of commercial housing, the advance purchaser need submit the registration certificate of the advance contract of commercial housing without the consent form. The reasons of its establishment can be listed as follows:protect transaction security; fully develop functions of notice registration; the attributes of notice registration supply its bona fide acquisition with possibility. Comprehensive considering the generality of bona fide acquisition as well as the particularity of notice registration, its constitutive requirements should be enacted as follows:there is right of the obligatory claim that is revolved around the change of real property; the consent of persons involved in notice registration; bona fides of creditor of notice registration; finish of notice registration.In the elimination of notice registration, the paper analyses the reasons of elimination of notice registration and its cancellation of registration. As for the reasons of elimination of notice registration, in order to balance interests between the notice registration obligee and obligor and urge the notice registration obligee to exercise his or her claim in time, the original stipulation of "since the date of real estate registration" should be changed into "since the date of the notice registration obligee knows or should know it is time to apply for real estate registration". Our law may increase provisions on the reasons of elimination of notice registration. As to the cancellation of registration of notice registration, it is necessary for our law to enact regulations of that eliminating notice registration need apply for the cancellation of registration. The cancellation of registration of notice registration has some certain effects such as eliminating effect, disposing real right change after the registration, constructive effect, and bona fide protection. The cancellation of registration of notice registration has two patterns:application for cancellation and direct cancellation. Some scholars consider all the interested parties as the subject of application for cancellation while others consider the former parties of notice registration as the subject. As far as I am concerned, it is clear and accurate to define it as notice registration nominal person, interested party and registration nominal person. The application method includes common application and unilateral application. The circumstances of direct cancellation include:when notice registration develops into real registration, registration office should cancel notice registration when it completes real registration. Registration office has the power to determine that notice registration obligee knows or should know about the registration with sufficient reasons. When legal terms expire, registration office ought to cancel notice registration. When real estate vanishes, registration office will cancel real estate rights along with its notice registration.The conclusion part puts forward proposition of improving notice registration of our law, respectively enacts the legal articles of perfecting notice registration in Real Right Law and Enterprise Bankruptcy Law, and studies out the legal articles on notice registration in prospective Real Estate Registration Law. |
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