Advance Notice Registration System Research

Regulation of advance notice registration of real estate has been a new focus in recent study of real estate registration in China. Advance notice registration is one of new types of real estate registration in China, but from the view of comparative law, it is a matured institution of real right with a long history. In this thesis, theoretical and practical problems concerned are explored thoroughly by comparative and economic analysis. The thesis is composed of five parts, nearly 4,0000 words.The first part is the legislative comparison of advance notice registration in some countries. From the point of comparative law, the regulation of advance notice registration is originated from German civil law, and then was adopted by Swiss, Japanese and Taiwan's civil law. The nature and scope of the right preserved by advance notice registration are depended on the different model of alteration of real estate. In Japanese civil law, both real right and creditor's right are preserved, but merely creditor's right is preserved in German, Swiss and Taiwan's civil law. Further, the preserved rights of claim are regulated by statues, and have no direct connection with its alteration of real right. The preserved rights of claim are requested to be directly connected with the alteration of real right in German and Taiwan's civil law. On the other hand, regulations on the range of application, constitutions and validity are same or similar. Therefore, if we are to adopt and transplant the constitution advance notice registration, we must make it coordinate with constitutions concerned in property law of China.The second part is author's effort to define the conception of advance notice registration and to analyze its values. The advance notice registration is to preserve the creditor's right of claim in the coming alteration of real right when the conditions requested are absent or under constituted. Advance notice registration has three characters: guaranty, subordination and preference. The value of advance notice registration is to give some real effects to the creditor's right of claim and ensure that the right of claim will be satisfied in immovable businesses. From the angle of legal science, the regulation of advance notice registration improve the functions of preserving the business safety in real right law. From the point of economics, it is surprisingly different in cost consumed by two main approaches to the advance notice registration. The cost of the approach based on the debtor's consent is less than that of the approach based on pseudo-disposition. Thus most countries discharge creditors from the burden of proof in applying pseudo-disposition in their regulations of advance notice registration. It is so feasible that much economic burden can prevent creditors from misusing the regulations of advance notice registration, which will excessively limit the real right of the immovable.The third part focus on the range of the preserved right of claim and the nature of the advance notice registration. Each country has its own regulations with distinct features, categories and range of advance notice registration. The author here agrees to adopt some regulations in German civil law so as to preserve the right of claim which is aimed at creatingthe alteration of real right. The nature of advance notice registration is based upon the nature of the right of claim registered in advance. After having been made advance notice registration, the obligatory right is vested some effects of real right, but it is not a real right in essence. The advance notice registration is a special guarantee system with some effects of real right. The institutions of advance notice registration has been a good example to explain the tendency of merging of real right and claim right, and challenged the traditional rigid definition of such two rights in Civil Law System.The fourth part explores the creation of advance notice registration, which is the core of the thesis. The advance notice registration can be created by three w...