On How To Protect The Real Rights Holders’ Interests In The Real Estate Register System

As an important form of social wealth, real estates are mostly unique and non-renewable, and carry the most property values of the rights holders, and thus, real estate legislation has always been the focus of national civil law. On the real estate legislation mode, China’s Property Law adopts the following mode:with registration condition doctrine as the general principle, and registration antagonism as the exceptional practice. That is, unless the law specifically provided, all changes in real property must be registered. This means that in the vast majority events of real property transfer, the person registered in the registry is presumed to be the real rights holder. However, in real life, there are a lot of persons, who registered in the registry, are not the real rights holders. Therefore, direct application of the presumptive force of real estate registration as well as public credibility of registration to the judicial practice will cause great damage to the real rights holders.The purpose of this article is that through the interpretation of relevant legal provisions and institutional values of the Property Law, as well as the specific analysis on a variety of situations that nominal rights holders are inconsistent with the real rights holders, to find a solution that could protect the real rights holders’interests, and provide an available reference for judicial practice. On the basis of interpreting the existing statute law, this article is both theoretical and practical. The whole text totally refers to10real cases, reflecting its strong practical nature.This paper is divided into four parts, and totally about45,000words.The first part analyzes how the effectiveness of real estate registration sacrifices the interests of the real rights holders. The registration of real estate will produce the presumptive force of registration and public credibility of registration. The presumptive force of registration cause damages to the interests of the real rights holders mainly on that it is harmful to the "existing interests" of real rights holders, which mainly refers to the right to possess, to use, to benefit, to dispose of the real estate, as well as the psychological interests of expecting the legal recognition of the real rights holders’. The damages that public credibility of registration caused to the real rights holders are that in the cases of a third person involved in the transaction, the public credibility of registration chooses to protect the interests of the bona fide third person instead of protecting the static property safety of the real rights holders, which will lead to the real rights holders lose the ownership of the real estate, and could not demand the third party to return the original res.The second part analyzes the reasons why real estate registration cause damages to the interests of real right holders. Firstly, the paper points out that registration errors are the direct cause that lead to the damage of real right holders, what’s more, it redefines the concept of registration error; secondly, the paper reveals the specific reasons which lead to the inconsistence of the nominal rights holders and with the real rights holders, further more, it puts forward that the recognition of real rights holders is of great significance for determining whether the registration is wrong or not.The third part summarizes and gives a brief analysis on the specific circumstances that the real estate registration harms the interests of the real right holders. According to different criteria, all situations can be divided into different types. First, in accordance with the different contents of the registration error, situations can be summarized in five cases, among which the cases that related to jointed ownership are the most complicated and difficult to deal with. According to the different natures of right, situations can be summarized in two broad categories:the situations that cause damages to the real estate ownership of the real rights holder, and the situations that cause damages to other rights of real rights holders’real property, where the former can be divided into eight small classes, and the latter mainly refers to the cases that cause damages to the real rights holder’s real estate mortgage right.The fourth part, which gives a deep discuss on the rules’construction of the real rights holders’legal protection, is the core portion of this paper. Under different circumstances, the rules to protect the real rights holder’s interests vary. Therefore, the real rights holder’s protection problems are discussed respectively in two cases:the cases that when a third person is involved in the transaction and the cases that when no third person is involved in the transaction. When no third person is involved in the transaction, a correct understanding of the presumptive force of registration and a correct grasp of the rule of laws is very important; when there is a third person involved in the transaction, the following rules should be emphasized:in the specific case, many factors, not only the factors provided by precise law but also other factors, i.e. whether the real rights holder has mistake or not, should be taken into consideration to measure whether to protect the interests of the third person or the real rights holder. Unless obey the above law, the unfairness that the existing law brought to the real rights holders can be reduced to the minimum.