On The Positioning Of The Notarization In China’s Real Estate Transfer

The “Law of the People’s Republic of China on Real Right”, which came into effect onOctober1,2007, has officially established the real estate registration as the legal public meansof the real estate transfer, whose key system is also the real estate registration system. Butthere are many insufficiencies of China’s real estate registration system in system design andpractical operation. So, how to perfect the real estate registration system to achieve itsintended value, is one of the hot topics in the theoretical discussion after the " Law of thePeople’s Republic of China on Real Right " was promulgated.One of the ways that is highlyendorsed in theory is to take the real estate’s statutory notarization, combined with the formalexamination of the registration of German and France for reference, which uses notaryprocedure as the prepositional procedure of China’s real estate registration for substantiveexamination. However, the role of the notarization in China’s real estate transfer practice hasbeen gradually weakening in recent years. As far as our notary system itself, it is an importedproduct like many other legal systems in the legal system modernization in China. Since thenotary system’s introduction from western countries, its development history is less than onehundred years, so the establishment and development of notary system in our country doesnot have deep historical foundation. In2006, the “Notarization law of People’s Republic ofChina” promulgated and began to carry out, although the reform and development of ourcountry’s notary career began a new high tide, the “Notarization law of People’s Republic ofChina” is still not completely solve the problems of notary system, the notary systempositioning is still vague. So, the discrepancy of theory and practice makes it necessary tomake a correct positioning of notary system in China’s real estate transfer. The relation of thispaper’s every part is close, and comparison research method is used, in addition to thesummary part, this paper is divided into five parts:The first part is about the mode of our country’s real estate transfer and registration examination. This part firstly introduces the mode of our country’s real estate is same to thatof German, which means registration is the necessary requirement of the real estate transfer.And there are three viewpoints in theory about the registration authority’s examination forms,including formal examination, substantial examination and the combination of the former twoexamination forms. Meanwhile, it is very confusing in practice. This paper proposes ourcountry’s examination mode of registration authority should be formal examination. Althoughthe formal examination has the advantages of fast review and high efficiency, its narrowreview range also make the registration mistakes appear easily, along with a series ofproblems such as the liability for compensation. So, in order to realize our country’s realestate registration system’s ultimate goal to guarantee the accuracy of registration andpromote the trade safety and social stability, in addition to registration system internal selfimprovement, introducing such external system as the notary system is a problem worthpondering.The second part discusses the current position of notary system in China’s real estatetransfer. This part analyses the current position of notary system of our country from bothpractice and theory. In practice, we can see notary system’s positioning from transactions andnon trading field of real estate, the fact is that the practice of notary system is graduallyweakening in our country’s real estate transfer. In theory, when the “Law of the People’sRepublic of China on Real Right” promulgated, a majority of the researchers claim studyingfrom German and France, will be introducing the statutory notary system to the real estatetransfer. The theory cannot keep up with the practice, even runs in the opposite direction fromthe practice. Therefore, we have to doubt the theoretical point of view, and rethink thepositioning of notary system in real estate transfer.The third part is the legal notary system in real estate transfer of German and France.Our country has familiar legal tradition with the two countries, which are the representativesof the continental law system and also take formal examination in real estate registration. So,the problem of whether take the real estate transfer system of German and France forreference or not is worth studying. This part introduces the particularity of the legal notary system of Germany and France, digs the historical reason and social background of whyGerman and France taking combination model of notary organ’s mandatory substantialexamination and registration authority’s formal examination. The purpose of this section is toemphasize the special of the real estate registration system in German and France, although"advice from others, may attack the jade", the differences among our country and German andFrance make it necessary to consider our national conditions when we take reference for thesystem of German and France.The fourth part is about the nature and legal status of the China’s notary system. Thissection analyzes the nature and legal status of the notary organ and the notary official,discusses the areas of the notary business in China, as well as the notary’s security andliability mechanism. The facts prove that China’s notary system is not as advanced as that ofGermany and France. Therefore, the introduction of the legal notarization system into our realestate transfer is still an immature idea. This section also lays the foundation for thediscussion of the correct positioning of the notary system in the real estate transfer of China.The fifth part is the correct positioning of the notary system in the real estate transfer ofChina. This part begins with the drawbacks of the substantive examination of the notary organ,and our notary office cannot use substantive examination in the real estate transfer. This partdiscusses the infeasibility of using the legal notarization as the procedure for substantiveexamination before the real estate registration’s formal examination. In the end, this papergives an explicit answer, which is against the statutory notary system introduced into the realestate transfer, to the problem of notarization positioning, but still supports the voluntarynotary to play its role.