| Fore-notice registration is an important system of the changing of estate property right. It has important meaning in the aspect of ensuring the rights of the party, maintaining the steady relation of estate property right and the safety of trade. In our country,property right legislation is relevantly lagged behind in a long period of time,but the trading market of estate has already brought up the strong demand of setting up the fore-notice registration system,the related laws of the nation has already concerned about fore-notice registration system, some areas have already made the local regulations and have satisfied the needs of the society life for fore-notice registration. On the 16th of March, 2007, during the Fifth Meeting of the Tenth People's Congress our country passed the"Property Right Law"with very important meaning. In item 20 of this law, a new registration system is regulated,that is fore-noticeregistration system,this is the first time that our country has clear regulation in the form of national legislation on fore-notice registration system. But the content of the clause itself is very abstract, goes against the practice operation of law. From the practice at present, our cognition on this system is still not enough, many problems of depth haven't been involved and many detailed problems are neglected. With this kind of recognition in supporting the fore-notice registration system it is hard to expect it to exert its anti danger function. Because of this, this article purposely wants to lead the cognition to a depth,through the comparison and research on the fore-notice registration system of Germany, Japan and Taiwan Area of our country and brought up the suggestion to perfect the fore-notice registration system in our country,tries to obtain an overall or break through type of cognition.The article has 5 parts:the first part is the character of fore-notice registration. Through the analysis on the 5 theories at home and abroad for fore-notice registration, that are"preservation measure theory","property right theory","pre-property right theory","debt right theory", and"debt right property right theory", the author thinks that although the fore-notice registration has original debt right, the effectiveness of property right of the right to request not changing the nature of the debt right,the changing of the right to request of the property right of fore-notice registration still belongs to debt right, but it is one kind of special debt rights. The reasons are:first, the nature of the right to request is still the right to request not dominance; second,the effectiveness of the right to request is special and can confront the third person;third,this right to request has provisionally existed after the contract is effective to the period of time before the changing of the property right; fourth,whether the right to request person will actually get the property right in the future is not definite.The second part is the applicable scope of the fore-notice registration. This part tries very hard to compare and investigate for the applicable scope of fore-notice registration. In the Civil Law of Germany, the right to request on fore-notice registration preservation includes:the right to request and its attached conditions and validation for the obtaining, death and exchanging as the purpose for estate property right. The fake registration in the Civil Law of Japan is one kind of pre-registrations,corresponding to the fore-notice registration in the Civil Law of Germany. Fake registration is suitable for the following situations:first,property right has already happened,but conditions for the documentation for registration application are not ready; second ,the right to request for the enactment, shift, alteration or perish the preservation object;third,the right to request for the starting period, stopping conditions of preservation or other can be changed property right in the future. The applicable scope of fore-notice registration in Taiwan Area includes:first, the right to request for the purpose of shifting or perishing the estate property right for preservation; second,the right to request for the change or order of the property right of the preservation content of the estate right;the third is the right to request for the attached conditions or attached time limit for preservation. Through the borrowing of the good methods of Germany, Japan and Taiwan Area of our country, the author thinks that the applicable scope of fore-notice registration of our country should include the following 3 aspects:first, the right to request for the enactment, shift, alternation or perishing of the estate property right; second,the right to request for the attached conditions or attached time limit of the estate property right; third, the estate for promised preemption right and the estate closed down by the court during the lawsuit period.The third part is the formality of the fore-notice registration. Through the comparison on the regulations on the formality of fore-notice registration of Germany, Japan and Taiwan Area of our country,we can see that the applied main body for fore-notice registration is basically the same,but the regulations for the routes of application are not the same. There are two routes for the application of fore-notice registration,the first is that the obligee that enjoys the estate property right through the agreement of the owner of the estate property right, brings up the application; the second is the fore-notice registration through the sentence of the court. In order to perfect the formality of fore-notice registration of our country, we must first regulated in the legislation the sequent of the obligor for helping with the registration, the conditions for the helping and the conditions for non-fulfillment;second, the law can regulate that under certain conditions, the party has the right to apply for the fore-notice registration by himself; finally,we should borrow the method of Germany for fore-notice registration on admitting the temporary order of the court and regulated in the legislation of our country when the obligor refuses to assist, the obligee can apply to the court for fore-notice registration and then have the court make the judgment for none lawsuit formality, obligee can take this judgment to apply for fore-notice registration from the registration authorities.The fourth part is the effectiveness of fore-notice registration. Effectiveness of fore-notice registration is the core of fore-notice registration system. Through the comparison of the fore-notice registration system of the Germany Civil Law, the fake registration system of Japanese"Estate Registration Law"and the fore-notice registration system of the"Land Law"of Taiwan Area of our country,we can conclude the following effectiveness:the first is the effect of the order of preservation. That is when the fore-notice registration was pushed for this registration, the time of the registration can be recalled to the time for the fore-notice registration,the rights of this registration is located after the fore-notice registration,before all the rights before this registration. The second is effectiveness of the preservation right. As for the effectiveness of the preservation rights,there are 3 kinds of criterion modes in the consideration of the legislation policy, that are"forbid the registration person in name to be again punish creed","forbid the registration after that creed"and"punishment relevant inefficacy creed"these three kinds of modes. The accepting or rejecting and exchanging of these three modes,from the utterly invalidation to relevant invalidation for the punishment of the registration person in name,reflects the legislation current from singly protect the benefit of the creditor to giving attention to the benefit of the party. Under the comparison"relevant invalidation"is giving the attention to the two benefits at the same time and it is a criterion mode with the method and purpose in relevant. The third is the effectiveness of pre-alarm. That is to remind the third person ahead of time that the fore-notice registration will have the effectiveness of this registration in the future. The fourth is the effectiveness for bankruptcy protection. That is when the relevant person wants to file for bankruptcy,but the requiring time limit is not due or the fulfilling conditions are not accomplished, that is the obligee will not list the targeted estate into the bankruptcy estate. Through comparison and research, combining with the regulations of the"Property Right Law"of our country,the author thinks, first, it should be clear in the legislation that the effectiveness of preserved priority of fore-notice registration and the protecting effectiveness of bankruptcy. Next,the fore-notice registration system of our country should adopt relevant inefficacy principal. Finally, we should be clear about the effect of the public action for the handling of the estate after fore-notice registration.The fifth part discussed on the perishing of fore-notice registration. Comparing the perishing regulation of Germany and Taiwan Area on fore-notice registration,the reasons for the perishing of fore-notice registration are four kinds:the first is the perishing of the right to request for the preserved ; the second is that fore-notice registration obligee gives up or nonuser at the time; the third is that when the requirement right of fore-notice registration meets the legal deraignment;the fourth is perishing because abolishing of fake punishment. The"Property Right Law"of our country has already perished the debt right and the giving up right of the obligee or lazy to exert the rights as the perishing of fore-notice registration. The author thinks, we should also take the plea of the obligor and the application of the advantages and disadvantages related people also as one of the reasons for the perishing which will make the perishing of the related legislation of fore-notice registration more perfect. |
