Study On The Real Property Right Registration System

The security of transaction is even more important than transaction itself under condition of market economy. Established for the purpose of safeguarding the security of transaction, the estate registration concretely incarnates the principle of the property right pronouncement, and is a kernel of the property right transfer institution. It stipulates that the state registry, or registration body, keeps the of recordation of the status quo of the real property right and each transfer thereof on the estate register, and thus endows right as such with presumptive effectiveness and public trust, so as to achieve the effect of the estate pronouncement, and guarantee the rights and interests of the goodwill third party within the law. Yet, as to the issue of the estate registration, the lawmaking in our country is far from perfection, and there are a good many limitations in the institution concerned as well; while the related theoretic researches at home are still not sufficient enough to lend vigorous support to the legislation of real property. That is why I choose the estate registration system as my research direction. I intend to find out the existing problems in the current lawmaking through a comparative investigation of the estate registration system in Germany, France, Japan, Taiwan etc., and put forward some proposals on my own for the perfection of the estate legislation in process in China. This treatise consists of four sections. The first section, which deals with the fundamental theory of the estate registration system, includes three parts: the principle of pronouncement and public trust and estate registration; the four functions of the estate registration, i.e., to define the ownership of the estate and clarify the property right relations concerning the estate, to bring down the costs to protect the owner's estate and maintain static safety of the estate, to ensure the transaction security and the dynamic safety of the estate, and to save the transaction costs and improve the transaction efficiency; and an analysis of lawmaking patterns for the estate registration by comparing the contract registration system, title registration system, Torrens system etc. in other countries around the world in contrast to the status quo of the lawmaking concerning the estate. The second section comprises two parts, of which the former treats the registration body, register and the procedure as far as the procedural system is concerned, and the latter discusses the right of claim for registration and the effectiveness of the registration within the substantive system. The third section touches upon the classification of the estate registration, as is divided into principal registration and preparative registration. The former involves overall registration, alteration registration, corrigendum registration, reversion registration, and cancellation registration, and the latter covers the forenotice registration and dissidence registration in Germany, the pseudo registration and the forenotice registration in Japan, and the forenotice registration in Taiwan. As the core part of this dissertation, the fourth section concentrates on the propositions that the author brings forward for the improvement on the estate registration system in China. This section has three parts. The first part is about the lawmaking mode choice for the estate registration system in China, making a point that a "five-unification"principle should be followed, that is to say, the legal basis, the registration body, the registration procedure, the registration effectiveness and the certificate of ownership are to be unified respectively. It is proposed to adopt the legislation pattern that is based on the title registration system and that concurrently absorbs the reasonable components from the Torrens system. As regards whether to put public trust on the registration, I suggest that the registration be endowed with public trust, this is determined by the objective of the establishment of the modern estate registration to guarantee the security of transaction and the adoption of title registration system; as for the means of examining the registration, I agree to employ the substantive examination, as is supported by four reasons, viz., thefirst is that the public trust of registration determines that the registration body must examine the registration substantively, the second is that the adoption of substantive examinationism is to meet the requirement for secure transaction, the third is that this helps to balance the interests between the third party and the authentic owner appropriately, and the fourth is to enhance the sense of responsibility of the registration body, and reduce the probability of registration errors; as concerns compensation mechanism for mistaken registration, the author is of the opinion that a combination can be made of the Torrens system and title registration, that is, compensation fund should be set up, and if an erroneous registration occurs, the fund will compensate first, and then the state compensation mechanism can be started up to make up for the rest in case the fund cannot afford all the compensation demands; it should be defined that the registration body is responsible to compensate under the condition of its faulty, whether it is grievous or general. The second part is about the improvement of the classification of registration in our country. In the case of principal registration, the author holds that rigorous restriction should be placed on the registration lest it conduct the registration outside its province, but the body can correct immediately any register in question in the event of wrong citation of registration; once anything goes wrong with the registration of title, the registration body ought to perform its duty to send notice first, and should make no correction before the obligee or the party interested applies to. The registration body can make correction directly within its authority in no case but the party interested cannot receive notice and might thereby suffer great loses, and then the body must inform the party of the related correction in time. As regards the preparatory registration, the author confirms that the preparatory registration bears the effectiveness of saving from damages, the syn position effectiveness, and the bankruptcy protection effectiveness; none but the oblige, in the author's opinion, is to be qualified to applicant of the preparatory registration, and it will not agree with the aim ofthe preparatory registration if the title of the applicant for preparatory registration is bestowed on the obligor, or, the registration obligor. I stand for the establishment of the objection registration system for three reasons, the first is that the objection registration will not weaken the function of announcement of registration; the second is that during the preparatory registration, the nominal booker still has the disposition, or the right to dispose, instead of being forbidden to dispose his/her registered real property, but in this case the third party is not under goodwill protection; the third is that the objection registration as a positive means of relief plays the role in giving adequate consideration to the legal rights of the authentic obligee while protecting by preference the security of transaction with the goodwill third party, as is where the ultimate value of this system lies. The third part relates to some problems to be solved for the perfection of the estate registration system in China. In the aspect of the procedural system, in the first place, I oppose the judicial authority serving as the registration body, which should be subject to administration for four reasons, the first is that in most countries around the world the registration body belongs to the administrative authority instead of the judicial authority; the second is that the conduct of registration itself is of no judicatory property; the third is that chances for the obligee to acquire legal relief provided the court functions as the registration body; and the fourth is that it will be more difficult for the party to obtain legal relief on condition that the court acts as the registration body. In the next place, the registration personnel ought to be specialized and professionalized. Again, the register must be pronounced, and the present registration system that keeps secret the register of house property must be amended so as to achieve the goal of the registration system; not only the pronouncement principle should be established, but also the scope of the right of the subject to consult ought to be regulated, in order to result in a rational combination that leads to the target of announcing the property right and sees to the security of the privacy of the...