Research On Confirmation Of Real Estate Property Rights In Transaction

It is significant for the principle of real right publicity established and the real estate registration taken as the legal way of demonstrating the real right in Chinese civil law,which to a great extent guarantees the order of the static belonging of real estate and the safety of dynamic transaction.However,because of the imperfection of the registration system in China and the complexity and diversity of real life,there are some errors in registration and cases not included in registration in the transaction practice,resulting in such problems as“separation of name and reality”or “reality without name”.In this case,some authorities cannot correctly understand the real estate registration,regard it as the sole basis of real estate right confirmation and mechanically believe that the nominal person of registration is the real estate owner,while ignoring the core role of the parties’ expression of intention in the change of real estate and some factors of failure to register and registration error.These questions result in damage to the important interests of the real estate owner and serious violation of fairness,justice and common sense of social life.Therefore,they are important issues need to be urgently solved in real life that we should correctly understand the principle of property publicity and the real estate registration system,accurately judge the ownership of real estate,and protect the rights of the registration nominal person,the true right holder and the third party in the transaction.Aiming at the problem that the theory of property law is divorced from the practice of real estate transaction,it is necessary to carefully reconsider the theoretical issues of the expression of will in the real estate change,the credibility of registration and the expectant right of real estate.This paper argues that the confirmation of real property right in transaction should be based on the expression of intention of the parties,correctly understand and distinguish the expression of intention of the occurrence of creditor’s right and the change of real right,and carefully analyze and judge its nature,content and effect.At the same time,we should deeply understand the system of real right publicity,correctly understand the formation force,constructive force and credibility of real estate registration,profoundly recognize the nature of registration,and take it as the formal basis of real estate right judgment rather than the final basis of it.Based on this,the article discusses the four confirmation rules of real property rights in the transaction: the presumption rules of the correctness of the registration rights,the relative rules of the public credibility of the registration,the rules of the diversification of the publicity methods of real property rights,and the rules of the distinction between factual and legal real rights.These rules not only adhere to the registration system,but also have some complementary developments.The core contents are as follows: Firstly,on the basis of upholding the real estate registration system,we should have a deep understanding of the nature of registration,and take it as the formal basis for the confirmation of real property right rather than the substantive basis,and allow interested parties to provide evidence to overturn it;Secondly,In the case that the third party is not in good faith,the registration of non-right items is wrong,and the cause of disposition is invalid or revoked,the application of registration credibility should be limited.Thirdly,the registration of real estate is the best way to publicize the real right of real estate,but by no means the only way.In addition to real estate registration,other forms of publicity such as possession should be recognized to meet the needs of complex and diverse social life practices.Fourthly,in the case of separation of nominal rights and real rights,we should distinguish whether the specific interests of the third party are involved,correctly apply the standard of fact and appearance,and comprehensively consider various factors to accurately judge the ownership and content of real property rights.This paper also analyzes and discusses the real estate ownership under certain circumstances,such as the delivery and possession without registration,paying a debt in kind,mortgage real estate transfer,etc.As to the protection problems of real estate owners,this article argues that the legislation of correction registration,objection registration,notice registration,damage compensation system of registration has been established,and the judicial interpretation of execution objection and reconsideration has been introduced.To some extent,it makes up the problem that the registration system of real estate is too rigid,plays an important role in balancing and protecting the interests of all parties,but not effectively protect the real right holder.Therefore,we should promote the real estate registration and civil enforcement legislation,improve the real estate registration and enforcement objection system for the real estate holders,and strengthen the legal protection and relief for them.In conclusion,the confirmation of real estate right in the transaction involves the major property and even survival rights of the parties,which not only should conform to the legal principles,but also in line with the reality of social life,effectively protect the legitimate rights of many real estate holders,and realize the fairness and justice.