On The Advance Notice Registration System

A complete registration system is essential for property transaction order and also is a basis for property right. The Real Estate Property Preliminary Registration Law System aims to safeguard claim of right of credit, i.e. property right transfer. The system was primarily stipulated in German "Civil Code", and later developed into a mature system, which is prevailing in many countries. Chinese "Property Law" was published on 2007, and it established the property registration system for the first time in China. Whether the system can generate good results in China is still pending, as there are still many problems left to be solved. This article analyzed the concept and quality of real estate property preliminary registration and evaluated its legal value and effect. By comparing with advanced foreign laws, this article further pointed out Chinese Real Estate Property Preliminary Registration Law System's inefficiency and proposed creative solutions. The whole article is divided into 6 sections:Section 1 introduced the concept of Real Estate Property Preliminary Registration Law System. Preliminary registration means due to inadequate conditions for property right transfer, the person involved cannot reach final registration, so to secure his claim of right or schedule, a provisional registration is carried out. The system originated from Germany, and later was adopted by Japan and Swiss, and Chinese Taiwan and so on as an important property system in civil law. Different from immovable property registration and dissidence registration, preliminary registration have qualities such as subordination and provision. Its major categories are:entity preliminary registration and procedure preliminary registration, narrow sense preliminary registration and broad sense registration, unilateral preliminary registration and bilateral preliminary registration.Section 2 is a comparative study. By analyzing preliminary law systems in Germany, Swiss, Japan and Taiwan, the section summarizes 5 revelations, including the applicable scope, initiation pathway,effect mode and so on. These revelations can contribute to Chinese legislation.Section 3 discusses about legal value of Real Estate Property Preliminary Registration Law System. There are diverse opinions about preliminary registration's legal quality. Generally there are 5 categories of theories in academic field:property theory, quasi property theory, right of credit theory, credit right-property right transformation theory, and intermediate right. The section concludes that the quality is right of credit. Each law includes its own value orientation, which is the principle of legislation and jurisdiction, so does preliminary registration law system. Its value orientations are:order, fairness, efficiency, freedom and safety.In section 4, the article evaluated the effect of Real Estate Property Preliminary Registration Law System. Effect is the core of this system, and the focus for study. The legislation model is divided into three kinds. But most countries take the "relatively ineffective doctrine" mode. Preliminary Registration Law System has four effect modes:preservation of rights, first ranking security, protection of bankruptcy and warning effect.In section 5, the article discusses the history of Chinese preliminary registration law system development. Before "Property Law" was published, there were pre-sale registration system and local laws for commercial housing, which explored the preliminary registration law system and laid foundation for this system in China. In the "Property Law" published in 2007, article 20 stipulated the preliminary registration law system, which marks a further movement forward, and was confirmed by academic circle. Later "Housing Registration Regulation" complemented the deficiency of "Property Law", which was too general for practice. At this time the framework of Chinese Real Estate Property Preliminary Registration Law System was established.In Section 6, this article discusses the perfection of this system. This system is legislated into Chinese law system for the first time. But due to incomplete in various regulations, its practical effects were not good. Based on those deficiencies, this article combined modern legislation mode and referred to foreign experiences, and further proposes new understanding about choice of legislative style, improvement of specific provisions and implementation in practice.