Research On Preliminary Registration Institution

Preliminary registration institution is prescribed in article20ofour country’s property law, it has played an important part in loweringtransaction risk for both sides and maintaining integrity in market andother area. However, as a new institution of property law, how to makeit join in our existing law system better and make good effect in realestate transactions practice, there are still many problems need us toresolve. In order to have a more clear and objective cognition of ourpreliminary registration institution in the legal nature, legal effect,system function and insufficient, this article plans to explore it fromthe following five parts:The first part simply introduces several basic concepts and theoriesof preliminary registration institution. Through introducing its originand development in Prussia, then I draw forth developing status ofpreliminary registration institution in our country and adopt provisionof preliminary registration institution in our country’s property lawas a reference. I define the basic concept of preliminary registrationinstitution and explain its characteristics. I differentiate preliminary registration institution from other relative concepts such as thedissention registration, the standard registration and guaranteed realrights. I introduce the nature of preliminary registration institution,There are many theories about the essence of preliminary registrationinstitution, such as real right theory, quasi property theory, creditorright theory, creditor right-property right transformation theory and soon. In this paper, I confine the essence to be a special creditor right.And the second part of this paper mainly explains the effectivenessof preliminary registration institution. Generally speaking, it has thepotency to preserve the validity of rights, and to ensure sequencepreservation and to ensure bankruptcy preservation. And in addition tothese, in Japan, some scholars think that preliminary registrationinstitution has the effectiveness of warning.The third part of this article uses comparative method to studypreliminary registration institution. I briefly introduce legislationstatus of preliminary registration institution in Germany, Switzerland,Japan, and Taiwan. Through introduction of preliminary registrationinstitution in these typical countries, I compare them with preliminaryregistration institution established in the property law of our countryand absorb advanced legislation experience and make our statue onpreliminary registration institution to be more perfect.The fourth part of this paper is mainly basic on provisions in ourcountry’s property law. Based on practical researches, I describecurrent legislation and practice status of our country’s preliminaryregistration institution. Since promulgation and implementation of theproperty law, our country has established several administrativelegislation and local legislation to specific preliminary registrationinstitution and make it easier to carry out. However, there are a lot ofproblems in the legislation of our preliminary registration institution. For example, preliminary registration institution established in theproperty law of our country confront some difficulty in its applicationarea, its effectiveness, its occurrence qualifications and others whenit’s carried out in practice.In the fifth part of this article, aiming at existing problems inpreliminary registration institution established in the property law ofour country, through considering advanced legislation experience in othercountries and areas and combining our country’s reality, I put forwardssome advice to consummate our preliminary registration institution andto make it play an important part in protecting trade safety in practiceand maintaining market order.