The Application Of Limitation Of Legal Proceedings In Property Certificate Dispute

In present judicial practice, there exists fierce dispute in whether or not the transfer of the rights of claim in real estate contract shall abide by limitations of legal proceedings. This dissertation states, the transfer of the ownership is to be regarded as right of obligatory claim, belonging to the objects of limitations of legal proceedings. Besides, there is no particular reason to exclude and thus shall abide by limitations of legal proceedings. On this basis, the writer examines the reasons and practices in calculating the time duration of transfer of ownership claiming lawsuit. This thesis consists three parts:Part one: with a brief introduction of the major opinion of the focused problem, the writer concludes that the core of the dispute is to define the feature of right of real claim, i.e. ownership transfer lawsuit claiming is one of general right of obligatory claim, as well as property ownership claiming right or creditor's claiming right with the characteristic of property ownership. The writer begins with the concept of property ownership behavior, demonstrates separately the behavior of appointed certificate issuing, the property of handover and registry of real estate property, and writes that the behavior of appointed certificate issuing is at bottom creditors. Only registry shall be regarded as transfer of property rather than appointed certificate issuing or handover, which is not stated by law. Thus, the writer concludes, the claiming of transfer of ownership is based on credit, belonging to general creditors claiming right, and therefore abide by limitations of legal proceedings.Part two: In this part, the writer first examines the purpose and function of effective duration, then argues against the statement that the transfer of ownership claiming shall not apply to it. The writer points out that this practice is not contradictory to the purpose and function of the system. Considering the registry of real estate in China is not perfect, the writer claims that we shall solve them by perfecting the registry system and regulating enforcement of law, rather than sacrificing the system of limitations of legal proceedings. Referring to reality, the writer also proposes some remediation ways and approaches on relevant problems concerned with limitations of legal proceedings.Part three: this part of the dissertation concentrates on the problem of calculation of the starting date if the real estate companies fail to hand over apartments by agreement or law. The write claims that whether"factual handover"can be regarded as legally transfer shall depend on the handover terms by law and the subjective state at the moment of handover. The calculation of certificate issuing and limitations of legal proceedings shall begin with the date on which both sides confirm the completion of handover. Finally, the dissertation examines two typical"factual handover"cases in practice and undertakes a detailed analysis of the problem.