Discussion Of Amendment To China's Real Property Registration System

I Introduction In several cases of loans and mortgage guarantee contract disputes in which the author was engaged, there are some issues deserve further research: Does the registration organ overstep its authority when it early terminates the mortgage time? Is that action valid? Term of mortgage right should accord with registration department or the real period of creditor's rights? When the land is under evaluation and all the other certificates have been applied for, who will supervise the process of registration? Who should take full responsibility for the loss of State assets? What about the credibility of real property registration? If the land consists of buildings or trees, should the party apply for different kinds of registration? Will this disturb the realization of the party's rights?II The existing real property registration systemA．The existing real property registration system's concept, theoretical fundamental and its significance. Modern real property registration system originated from Europe, and it means that acquisition, loss and transfer of legal ownership of land or other real property must be recorded by a specified organ. Theoretically, there are two kinds of real property registration: essentialistic registration and externalistic registration. Essentialistic registration means that registration can only confirm or prove transfer of real rights, but it has no power of denial. Externalistic registration means that, all legal actions regarding real property rights would not be valid without registration. What can be concluded is, firstly, real property registration is the basic of governmental organizations taxation on real property; secondly, registration is precondition of suchgovernment functions. B．Features of China's real property registration system: Individual or organizational land tenure registration is not allowed; the registration is compulsory; registration and land right certificate system concur; the registration department is a governmental organ; the registration department also has the administrative and supervising power; the action of registration generally are credible to the public. C．Contents of China's real property registration system, mainly about land and building registration: There are four kinds of registration in land registration: Initial registration, transfer registration, enactment registration and abrogation registration. Regarding building registration, there are six categories: General registration, initial registration, transfer registration, alteration registration, other rights registration and abrogation registration.D．Academic perspectives regarding China's real property registration system: It is generally believed that real property registration must have four aspects of effectiveness. First, the validation of real rights; second, deduction of validity; third, well-meaning protection; last, risk warning.E．Terms regarding consequences of lack of real property registration in China's mortgage law: It concludes two different situations, firstly, mortgage contract is invalid without registration; secondly, mortgage right is still valid but can not confront the third party without registration.III Inspiration from foreign real property registration system.A．Classified foreign real property registration system: There arevarious registration systems in all countries that implemented private land ownership. Registration organ, registration official and registration record constitute the core of real property registration system.B．Features of foreign real property registration system: Real property registration can be classified into two categories, normal registration and forenotice registration. Transfer registration, alteration registration, answer registration and cancellation registration make up normal registration. C．Forenotice registration system: It is an important part of terms regarding real rights registration in civil laws of Tai Wan district, Japan and Germany. This i...