Discussion On Judgment Of Case Of Transfer Registration Of House Property Right

There exist many problems and limitations about the judgment on case of house property right transfer registration in current legislation, so cause huge divarication among different courts and justicers. Linking to administrative trial practice and related law acknowledges, this paper analyzes prominent problems on accuser qualification, behavior censoring and judgment patterns in the case of house property right transfer registration, discusses reasonable methods and principles to resolve these problems above-mentioned and hopes to provide help for People's Court judging this kind of cases. The paper totally includes three parts. The first part is about placing the case of house property right transfer registration on file. Two main points discussed in this part are as followings: one is case cognizance of house property right transfer registration. To correctly cognize case of house property right transfer registration, registration category of house property right, mainly the difference between transfer registration and change registration, must be clearly distinguished to avoid wrongly recording former as administrative case which does not satisfy house property right change registration. Compared to other cases of house ownership registration, the prominent characters of this case are complex legal relationship, co-existing of administrative and civil disputes; the second problem is accuser's qualification. The paper indicates that the most prominent problem is whether or not he has the right of judicial remedy for the behavior of transfer registration which maybe affect the realization of creditor'rights of unit or person who has relationship of claim and debt with house seller, namely implicated person in one side to process transfer registration, in another word, the creditor whether possesses accuser qualification of administrative lawsuit or not. Aiming directly at this problem, the paper firstly illustrates Administrative Lawsuit Law and related judicial explanation on the regulation of accuser qualification and points out it has undergone a standard conversion from subjective to objective of the accuser qualification definition by administrative lawsuit in China's legislation. Secondly, combining with different ideas from specialists and scholars, the writer brings forward the paper's opinions on the definition of legal relationship of advantages and disadvantages with specific administrative behavior. At last, the paper clearly analyzes how to deal with the accuser qualification of creditor, and specifically involves the cognizance under four kinds of situations. The second part is involved in behavior examination of house property right transfer registration. The investigating standard is firstly discussed. Somebody claimed that the behavior of house property right transfer registration should obey formal examination standard, in another word, only if registration authorities had fulfilled its duty of formal examination during transaction of house property right transfer registration, then its registration behavior should be cognized legal by people's court. The main reasons are as follows: registration authorities only possesses formal examination right; formal examination standard is accord with the demand of administrative lawsuit evidence rule; the quality and function of transfer registration behavior decides it only adopting formal examination standard by people's court. However, the paper don't agree with the opinions and reasons above mentioned, and considers that people's court should adopt dual standards of formal and substantial when investigating the behavior of house property right transfer registration. The reasons include that: simple formal examination can not realize judicial remedy function of people's court, can not touch essential content of transfer registration behavior, and is not in line with the validity demands on specific administrative behavior in Administrative Lawsuit Law, otherwise, the behavior of house property right transfer registration has the function to affirm right and duty. Secondly, as behavior examination is concerned, the writer claims that the cognizance problem, that transfer registration behavior disobeys legal procedure, should be carefully treated. Based on this point, the paper considers that it can not be understood simply and automatically of the regulation on "disobeying legal procedure"in Administrative Lawsuit Law; litigated specific administrative behavior should be quashed or not, mainly rests with illegal degree of thisbehavior will produce essential effect on its entity content or not, otherwise, it has been clearly defined in laws or legislations that this illegal or deficient procedure will result in whole specific administrative behavior untenable. Totally, it is not reasonable for people's court to curtly form a cognizance of disobeying legal procedure when investigating house property right transfer registration and the emphasis should be placed on substantial investigation of registration behavior. If the registration behavior exists mild illegal problems which is not enough to affect entity cognizance and result dealing, people's court should affirm it existing procedural flaw but not disobeying legal procedure and should not judge quashing. The third part is concerning to judgment of case of house property right transfer registration. Current judgment pattern on house property right transfer registration is applicable to general regulation in Administrative Lawsuit Law and related judicial explanations. The keystones in this part are analysis and discussion on two specific problems occurring in the judgment: one is the applicability of quashing a judgment and affirming illegal or invalid sentence. Firstly, the writer explains definitions of these words above and legal applicable terms; then specifically analyzes problems and flaws of regulations applicable to these two kinds of judgment patterns in current legislation; indicates that it is a key point to distinguish illegal behaviors with different qualifies for correct applying quashing a judgment and affirming illegal or invalid sentence. With regard to how to differentiate invalid administrative behavior and revocable administrative behavior during the judgment practice, further strictly applying quashing a judgment and affirming illegal or invalid judgment, the writer indicates that using the standards, prominent and important flaws, adopted by continental law system countries for a reference, and judging litigated specific administrative behavior is invalid or not from the aspects of subject, content, pattern and procedure; because the revocable administrative behavior essentially is the illegal category which excludes prominently important flaws and previously mild flaws, if holding the cognizance standard for invalid administrative behavior, the revocable administrative behavior is also easily affirmed. But problems in judgment pattern are not readily resolved only afterdistinguishing invalid administrative behavior and revocable administrative behavior. Other points related to applying revocable judgment or not include that whether there are revocable content in revocable administrative behavior and whether revocable judgment will bring about huge loss for country benefit and public benefit. The second point illustrates that civil dispute involved in transfer registration behavior is not applicable to incidental civil judgment. It has been discussed here that according to the content of civil litigation attached to administrative lawsuit, the conditions should be satisfied to start a lawsuit: the premise of starting a supplementary civil action should be with the guarantee of reasonable administrative lawsuit; there are compact relevance between administrative dispute and civil dispute, in another word, the resolution of administrative dispute is the prerequisite for dealing with civil dispute; supplementary civil lawsuit should be started by civil dispute party. There are no clear regulations on the problems of civil litigation attached to administrative lawsuit in Administrative Lawsuit Law of China; it only defines in Several Explanations that under the conditions of litigated specific administrative behavior belonging to administrative judgment, people's court can judge together administrative and civil disputes, but no regulations about civil disputes involved in other specific administrative behavior whether can be applicable to attached civil judgment or not. Furthermore, the claim, that civil dispute involved in house property right transfer registration behavior is not applicable to attached civil judgment, does not come from the reason that transfer registration behavior does not belong to administrative judgment, but mainly because the legality and validity of civil legal relationship are the basis and prerequisite of legality of transfer registration behavior, which is just contrary to the conditions for civil litigation attached to administrative lawsuit. So only through the way of civil lawsuit, resolve related civil dispute firstly; then according to judgment from civil dispute, affirm the behavior of house property right transfer registration to be legal or not.