Research On The System Of Advance Notice Registration

The advance notice registration system originating from Prussia law, is amore mature system in civil law countries. It is a temporary registrationsystem in order to protect the interests of creditors when the conditions ofregister in end is not yet available. From the present situation in our country,awareness of this system is not enough, and even has some deviations, forexample some scholars believe that the pre-sale registration and the pre-salecontract registration are equivalent to the advance notice registration systemin the civil law.Whereas the effectiveness of it, we will take it in order to reduce the riskin real estate transactions especially in the pre-sale of commercial housing inthe future, we need research on the basic theory and the legislate patterns ofthe other countries. Because of the different backgrounds of legislativeculture, the provisions in various countries are varied. This article attempts tointegrate the theory and practice of advance notice registration system withour legal system, with a view to making suggestion to our own.This articlehas two parts :The first part is to summarize the advance notice registration system.The advance notice registration system is a registration system for real estatein civil law countries which are delegated by Germany, Japan andSwitzerland and China Taiwan. From the list of five different concepts of it,this article adopts one that this system is a registration to protect client's rightto claim when lacking the conditions of real estate changes. It has threecharacters such as sponsion, subordinate and priority. The effectiveness is thecore issue of the registration system, which includes the validity of protectthe right and the order, bankruptcy protection and early warning. The advancenotice registration and the system of dissenting registration both belong topreliminary registrati,which have many common ground and differences.They will been compared.The difference of real right pattern determines the difference of theirregistration system, the scope of the right to request and the nature. We couldsummarized the characteristic of the right to request from relevant provisionsof other countries and the studies, which are doing not have the premise tothe advance notice registration, aiming at the change in real property ratherthan personal property and it must be existing. The scope of the right torequest includes: for the right to the elimination or the transformation, for theright to the immovable property or the sequence, for the right which attachedto the conditions and the period. The right to demurrer which the obligorowned is based on the original legal relationships, which does not eliminatebecause of the advance notice registration. It does not change the legalrelationships arising from the sales contracts, even can not eliminate the rightto demurrer of obligors.The advance notice registration will take effect as soon as it is recorded,which needs certain conditions such as the existence of the right to requestand the agreement of the obligor or attachment. It is transferred with thecontract . The contract parties claim to be registered when the conditions forthe registration in end is achieved. If a third person involves in this process ,then the obligee could request the registration department to eliminate theregister in end, then register the right of the obligee. The right to request willbe eliminated if the basis of existing is lost . There are three reasons toeliminate the registration which include losing the reason to registration, theobligee abandoning the right and the owner of real estate requesting toeliminate the advance notice registration.The second part is the foundation and the design of the advance noticeregistration system in our country. As for the meaning that we create thissystem in the future real right legislation, they have been dissertate from boththeoretical and practical aspacts. The system apply to the real estateregistration, but mainly and directly in pre-sale housing. Its meaning in fact isto protect the real right and prevent one house be sold to more parties. Intheory aspect, it could conduce to consummate the real estate system andmake up the loopholes.The active laws in our country prescribe the pre-sale registration and thepre-sale contract registration in pre-sale housing, but they are not the advancenotice registration in civil laws .They are only administrative means and theireffectiveness are not clearly. There are only some regulations in variousadministrative regulations. This will inevitably lead to the effectiveness varyconsiderably.The advance notice registration system appearres in the current civil lawin China Taiwan, but in the mainland has not really established except somelocal regulations. However, this system has been prescribed in the fourdiscussion paper of the "the real right law" and two experts' advice paper of"the real right law", although varies. We can conclude that the introduction ofthis system is necessary. In the process of real legislation, we should decidesomething which all have decisive impacts before introducing a registrationsystem, such as the adoption of confront or in operation , the adoption of theprinciple of forms review or substantive review , the adoption of a voluntaryregistration or the compulsory registration system. The real estate registrationshould be clearly registered as a voluntary registration, the imposition offorms review and the registration of confrontation. The real estate registrationsystem also has many loopholes, which should be solved in the process ofintroduceing the advance notice registration system. Some aspects such as thearise, requirements and application procedures, effectiveness and eliminationare different. Law experts are arguing about which are to be choosed . Thispaper has put forward some own views after analyzing these problems.