On The Advance Notice Registration System

The system of advance registration, regarded as a kind of legal system corresponding to the registration system, is very important in the whole real estate registration system. It is mainly used to protect the claim of alternation of real right and plays a very important role in protecting the right of parties, the safety of transaction and market credit. No matter in designing or in applying, the system of advance registration is almost ripe in Germany, Switzerland, Japan and Taiwan in our country.The system of advance registration is a relatively new registration model in our country. This paper defines the concept of the system of advance registration, and reviews and analyzes its legal elements, application scope, legal force, procedure of promoting into official registration and cancellation. What's more, this paper discusses the integration of advance registration in our country through the analysis of the theory and practice of advance registration system.Advance registration is a result of the real estate law applying to obligatory right. One party expects the alteration of the future real right in the period from the completion of obligatory right to the completion of transfer of the real right. In order to protect the realization of the expecting right effectively, the obligatory is endowed with some effect of real right by the law. The phenomenon that the obligatory right endowed with the exclusive force essentially shows the fact that the real law is expanding to the obligatory law.The occurrence of advance registration needs three elements. First of all, there must be the items which can be registered. The claim protected by the advance registration is the one asking the alteration of the real right. If there is no real right alteration or the real right can't be registered, the advance registration will have no meaning. Secondly, there is the claim of real right alteration. The scope of the claim protected by advance registration is different with the different real right alteration mode. At last, there is the registration will between the parties. There is the interest of no less than two parties involved in the relationship occurred by the advance registration, so that the will of the two parties should be considered.There are several legal effects in the advance registration. In the first place, the protecting effect is the most important in the advance registration system. The protecting effect means that the advance registration makes sure that the alteration of real right can happen in the future. The second effect is the one that preserves the sequence. The sequence means the order and position of the registration right in the registration book. The registration sequence is a very important criterion judging the priority of the real right. The third effect is the bankruptcy protection effect. This effect can most reflect the real right nature. When the counterpart falls into the bankruptcy, the claim after the advance registration can make sure the occurrence of real right alteration through excluding others. When the performance condition realizes or term comes and the content of the claim is setting the mortgage, the party with the claim can use the exemption right. The last one is the warning effect. This effect means that the advance registration play the roles of warning the third party so that the third party can' t defense the official registration with the excuse of good faith.There are a lot of reasons that make the cancellation of advance registration happens. There are mainly two types. One is the termination of the right protected by the advance registration because of contract rescission, mixture, discharge or the other items. The other one is that the advance registration right owner gives up the right.The advance registration makes no sense without official registration. The effects of advance registration depend on the official registration. There are two situations when the advance registration promotes into the official registration, namely, with or without disposing act between the advance registration and official registration.The conclusions of this paper are as follows: (1) The obligatory right protected by the advance registration is endowed with effectiveness of real rights (2) No matter in designing or in applying, the system of advance registration is almost ripe in Germany, Switzerland, Japan and Taiwan in our country. However, the concept, content, legal affect and scope of the advance registration are different in those countries mentioned above because of the different lawmaking background. (3) Although the system of advance registration has been stipulated in the new issued Real Right Law, it is should be introduced in the future Real Estate Registration Law in order to assure the integrity and influence of the system. (4) It is urgently needed to establish the system of advance registration in our country. Now, the real estate market develops quickly but the construction of credit system can't keep pace with it. As a result, it is essential to perfect the system of advance registration to protect the obtainer of real estate right.