Research For Criteria Of Judicial Review Of Real Estate Registration

The responsibility of Real Estate Registry is clearly provided by The Property Law of the People's Republic of China in 2007. It results in that examination of registration becomes stricter. In this case, if the legality of real estate registration conduct is challenged, and such suitcases are brought to people's court of justice, the question will lie in how traditional trial models are transferred. That is to say, what criteria of judicial review should judges adopt to cope with this kind of cases fairly and impartially. This is the focal point of this dissertation.At first, the basic question is put forward and answered in this chapter. It clarifies the reason why this theme is chosen to study. Then a few vague topics are analyzed. First, as for the examination model of real estate registration, is it formal or substantive? In this dissertation, relevant clauses of the Property Law of the People's Republic of China are compared with French, Australian and German practices. In China, the examination model is relatively substantive examination. Second, is real estate registration civil conduct or administrative conduct? The latter is preferred here. Third, is real estate registration to grant rights or to affirm rights? The latter is preferred, too. Fourth, does registration equal permission? It is held that they are not the same. On the contrary, there are some differences and relations between them. At the end of this chapter, the purport and significance, together with the standpoint and methodology of the study, are briefly introduced. Then judicial review and its criteria on real estate registration are defined in theory, and the purpose of judicial review on real estate registration is defined, compared with other countries'regulations. At the same time, criteria of judicial review in the Common Legal System and the Civil Legal System countries, such as the US, UK, Germany and France, are compared with each other. The general tendency and objective law of development on judicial review criteria are induced. Problems of criteria on real estate registration are analyzed, then causes of such problems are dissected. Following this, challenges are systematically elaborated stemming from the change of examination model on real estate registration as well as the transfer of criteria of judicial review. Based on the comparison, principles to establish criteria of judicial review on real estate registration are hereby suggested. Criteria should tally with purposes of judicial review. Intensity and depth should be moderated. Legality and reasonableness should be combined. Principles of property rights should be obeyed. Property should be protected equally. Procedures of registration should be legal. Based on these, the most important new ideas and content is emphasized in this part. At first, theories about analytive method on sources of property rights are created. It is suggested that judges should examine whether sources of property rights have been investigated and checked according to statutory procedures, and assess rationally within its power. Then jurisprudence and practice of this theory are discussed. After this, necessity and feasibility of this theory are analyzed. At the end of this chapter, judicial self-restraint is reminded in the process of using the theory.Then this dissertation focuses on how to use this theory to deal with real estate registration administration cases. In the first part, criteria of judicial review according with transformation of property are discussed, including real estate property founding registration, changing registration and canceling registration. In the second part, criteria of judicial review according to legality of registration conduct are discussed, including evidence ,law, procedure and registration power. At the end of this dissertation, the precedent system is imitated as supplement . First, success of precedents in the Common Law System is introduced. Second, origin and development of Chinese case law system is stated. On basis of these, necessity of precedent system for real estate registration administrative cases is discussed. At the end of this chapter, how to establish precedent system of judicial review about real estate registration is suggested.