Study On Realty Registration System Of China(1949-2014)

The institutional composition and operation is the object to new institutionaleconomics (NIE), which focuses on how and why does institution change. This paperattempts to use institutional evolution theory in economics to comprehend and tointerpret the evolution of realty registration system (RRS) in law. RRS is a system ofpublicizing the real rights and the alteration of a realty, which is very important toprotect property rights, to safeguard transaction security and to promote economicdevelopment. RRS was introduced to China in the late Qing Dynasty and the earlyRepublic of China; however, hundreds of years later, we are still striving to establish aunified RRS. Thus, it has great theoretical and realistic significance to study theinstitutional evolution of RRS since the founding of the People’s Republic of China.Except for the introduction and conclusion, there are five chapters in this paper.Chapter1The basic theory of the institutional evolution of RRS. The theory ofRRS and the theory of the institutional evolution have been discussed in this chapter.Realty generally refers to lands and the above-ground fixtures of the lands. Thechanges of real rights refer to the creation, alteration, alienation or termination of thereal right. The changes of real rights shall be subject to certain publicity measures,which include realty registration and chattel delivery. Until it is registered inaccordance with law, the changes of the real right of realty shall come into effect;unless it is otherwise prescribed by any law, it shall have no effect if it is notregistered in accordance with law. The demonstrative principle and public trustprinciple of real right aim to clearly defining the attribution of the res, to safeguardtransaction security and to stabilize trading order. The real right changes theory and the real right behavior theory is the foundation of RRS. The real right behavior theorymainly includes the concept of real right, the independence of the real right behaviorand the non-reasonability of the real right behavior. Whether to recognize the realright behavior theory or not influences the legislation of registration effect. In China,we only recognize the independence but not the non-reasonability of the real rightbehavior. Without the institution, human society could not in a sound order. In thispaper, Douglass North’s institutional changes theory is mainly used. Institutions havethe characteristics of habituation, certainty and equality. Institutions, as Northdescribes, are devised as formal rules and informal restraints. In the processes ofinstitutional evolution, informal restraints play very important role which cannot beignored, especially for ideology. It is realized that, to some extent, ideologydetermines the institutional evolution of a certain period. Due to the institutionalsupply-demand imbalances, it’s for the reason that people in pursuit of potential profitopportunities leads to institutional change. Analyzed from the angle of subjects andinducing factors, institutional changes can be divided into induced institutional changeand compulsory institutional change. Institutional changes are constrained by theeconomic, politic, knowledge and ideas, as well as the ability of the subjects.Chapter2Historical origins of the RRS in new China. There are three kinds ofhistorical origins of the RRS in new China. The first one is the establishment of RRSin the end of the Qing Dynasty and in the Republic of China. The second one is newdemocratic revolution achievements. The last one is the influence of former SovietUnion legislation. There has no modern RRS in China before the introduction ofwestern legal system in the late Qing Dynasty. The structure and content of realtycontracts are relatively stable from the early Qing dynasty to the early years of theRepublic of China. At that time, the form of the changes of the real right of realty isbound by traditional contract formalism. The Draft Civil Code of Qing Dynasty hasstipulated realty property rights system. Although this system never comes into force,it is initiates the civil law theory education of the Republic of China. In1922, Beijinggovernment promulgated the Realty Registration Ordinance. Although it is optionaland has little effect, it denotes RRS has been preliminary established in China. Afterthat, Nanjing national government promulgated a series of legislations of RRS; so far,modern RRS has been entirely established in China. In New Democratic RevolutionPeriod, the new democratic regime, under the leadership of the Communist Party ofChina, formulated a number of legislations of RRS in various periods, which provided abundant experiences to the founding of New China’s construction of RRS. After NewChina was founded, China almost completely copied the experience of the formerSoviet Union in the theoretical and practical aspects of the legal construction. Scienceof civil law was inherited from the science of civil law of former Soviet Union. Legalphilosophy and legal education was transplanted from former Soviet Union too. All ofthese have a profound effect on the legislations of the People’s Republic of China.Chapter31949-1978: The stagnation of RRS. After the founding of NewChina in1949, both the Central government and local governments issued realtyregistration legislation. The purpose of realty registration is to define the attribution ofthe res, but the realty registration legislation still reflects the inheritance of legislationand continuation of the historical custom. Following the liberation of China in1949,the central government launched a rural land reform and most cities carried out ageneral registration of real estate to certificate the attribution of the res, which purposeis to promote the growth of the productive forces. Along with rural landcollectivization, urban land nationalization and urban private-owned housetransformation, realty trading was restrained and realty registration business came to astagnation. During the Cultural Revolution, the realty registration institution almoststopped this business, China’s judicial system suffered severe damage and thedevelopment of RRS grounded to a halt. The causes leading to the changes of RRSmainly include the change of the constitutional order, the ideology of "class struggleas the key link", the repeal of old laws and the transformation of science of civil law.Chapter41978—2014: The return of rational RRS and the development ofmarket-driven tendency. Based on the value of the realty registration legislation, wecan divide this period into three stages. From1978to1992, RRS takes administrativemanagement as its value goals and the key content of registration is right, whichincubated the non-unified pattern of RRS. During this period, the government widelyissued certifications to urban housing and state-owned land, which led to animbalanced development between urban and rural areas. From1992to2007, there istendency for market-driven RRS, especially for mortgage right, and RRS graduallymoves toward to marketization, nomlalization and legalization. From2007to2014,the conflict between market economy development and non-unified pattern of RRScan’t be ignored anymore and it is very urgent to build a unified pattern of RRS.Property Rights Law of the People’s Republic of China (2007) draws the outline of a unified RRS. After that, the government turns to focus on rural land registration to getrid of such imbalance between urban and rural areas. A unified RRS constructionofficially launched. At this period, the underlying reason for RRS changes is reform.The imbalance between institution supply and demand is the stimulating force to RRSchanges. In New China’s RRS changes, a kind of path-dependent can be noted, suchas the influence of the former Soviet Union law is still there. The pattern of RRSevolution has transferred from mandatory changes to market-demand induced changes,without any doubts, the government responds to these changes at the same time. Twokinds of RRS evolution pattern interact with each other and they cooperativelypromote the development of RRS.Chapter5The selection of China RRS pattern. There are three kinds of RRSlegislation patterns in civil law countries, which are real right formalism, real rightsintentionalism and creditor’s rights formalism. In China, we mainly adopt creditor’srights formalism, but does not exclude the use of real rights intentionalism, whichmeans any changes to realty right shall only take effect upon registration unlessotherwise provided by law. The status quo of China RRS includes multiplemanagement, limited registration range, imbalanced registration development andambiguity registration procedures, etc. To establish a unified RRS is the selection ofChina RRS pattern. The essence of “unified”denotes unified registration authority,unified registration range, unified registration procedures and unified register book.In New China, RRS has experienced an evolution of more than60years. During1949to1978, ideological of informal institution influenced, restrained evendetermined the changes of RRS. Since the reform and opening up started in1978,with the further development of our market economy, RRS gradually gets rid of theadministrative color and steps into market-orientation model. China RRS finally turnback to the origins of modern RRS.