Protection Of Private Rights In Registration Of Real Estate

Registration of real estate has double characters. Substantially, registration ofreal estate is an important part of property law, which has direct impact on birth,change or loss of property rights. Registration of real estate is of great significance inmaterializing private rights, such as contract rights. According to the differentcharacters of real estates, registration of real estate may make property rights takeeffect, obtain priority or become alienable. Regardless of these differences, from theviewpoint of civil law, registration of real estate always serves private rights andreflects the will of parties. While in formality, registration of real estate appears to beadministrative identification. Nothing can take effect until it is recorded. Registrationhas both public and private functions. Private function should be its main function andpublic function should be its junior function.In reality, when drafting the rules on registration of real estate, governmentsalways highlight the administrative character and ignore the civil character. Thereason of departure becomes unknown with the increase of mileage. Merely from thewordings of related regulations, it can be seen that the rule-makers does not recognizeprivate rights at all and the leading role of registration parties is also forgottencompletely. Registration of real estate is merely taken as administrative act and partiesare only regarded as administrative subject. The rules herein reflect mainly the willsof government, which serve the governments’ aims instead of the parties’ interests. Based on the wrong conclusions about the character of registration of real estate,public powers expand unchecked and its damages become more and more clear.First, the low rank of registration resources have direct impact on fundamentalcivil systems, such as the principle that property rights can only be set up by laws. Asa fundamental property system, registration of real estate matters the interests ofparties greatly. Except laws made by congress and its outstanding committee, otherregulatory papers are not entitled to establish rules that affect property rights. But inreality, many by-laws have the effects of influencing property rights. And the parties’rights are always ignored. Under this situation, the principle that property rights canonly be set up by laws breaks down into pieces, since property rights can come notonly from laws but also from by-laws. The localization of standard of registration andjudgment thus become inevitable.Second, the unchecked expansion of registration capacity fully realizes wills ofgovernments and registration of real estate is full of uncertainty. The local laws ofShangHai introduce a new kind of registration, papers registration. This makes theunchecked expansion of registration capacity likely. In theory, any papers made byany governments may enter registration book by paper registration and have impacton registration. To governments, registration of real estate is an effective means andreliable platform to solve many social problems, such as unlawful construction,damage of constructions and evasions of taxes. While to parties, the rules ofregistration of real estate are quite uncertain and hard to predict. The bargainefficiency is hardly affected and the parties may have to shoulder the burdens thatthey should not take.Third, registrars have to find their own detour since many registration conditionsare beyond registrars’ authentication capacity, such as distribution of tenant by entirety,the identification of heirs, the behavior ability of registration parties. These are allconcerned with fundamental civil rights, which are beyond the power and ability ofregistrars to judge. Those disputes should be solved by lawsuits. While the rules ofregistration of real estate appear comprehensive, they are hard to produce true effects.Registrars may give up their duties or assign their duties to third parties, such as notaries. Unreasonable registration conditions are harsh to registrars and affect theaccuracy of registration in a negative way. Whole registration system is based on highprobabilities and the costs and risks will ultimately burdened by parties.Finally, taking registration of real estate as policy severely damages thereliability of law and trade security also becomes vulnerable. Policy and law havedifferent characters, which are applied to various social relationships. As fundamentalproperty law system, registration of real estate should remain uniformed and stable.But in reality, registration of real estate is always subject to policies and often utilizedas one chain of control. Due to the large sum and long period of real estate business,quick change of conditions and procedures of registration may make partiesunprepared. Their vested rights under contract may be deprived and fall into variousdisputes.The main viewpoints of this thesis are to highlight private rights behindregistration rules of real estate. Definition, character, functions, capacity, review andliabilities of registration of real estate should all serve the realization of private rights.Governments should focus more on administrative services than on administrativeregulations. Public encumbrances imposed by governments must be limited andgovernments can do this only by implicit laws. And the implications on private rightsmust be taken into account. Governments should not merely take registration of realestate as a regulatory platform under the name of public interests.