Research On The Registration Confrontation Doctrine Of Japan

In the real estate real right change mode of our country adopted two systems, registration confrontation doctrine and registration validity doctrine. For this kind of legislative model is reasonable, whether can effectively guarantee the problem such as security, researching on other countries’ legal system can provide us with a new perspective to understand this question. The Japanese use registration confrontation doctrinefor more than 100 years. And the study ofregistration confrontation doctrine become more and more perfect. Registration confrontation doctrine has formed many theories and cases. So the study of Japan registration confrontation doctrine has great benefit to perfect our legislation.The biggest problem that registration confrontation doctrine in Japan in the process of implementation encounter is about how to explain the article 176 and article 177 of the civil law in theory. Article 176 of the Japanese civil law real right changes on the intention to complete. And the article 177 that the provisions have not been registered shall not be against the third party. Lawmakers in the beginning of the legislative law rule is very simple, but it has brought great trouble in use. First of all, about 176 of this law shall mean creditor’s rights or real right has sparked an argument. Although lawmakers adhere the creditor’s rights mean position, but many scholars because of Japanese civil law as a whole is two points of creditor’s rights and real right system of German law, and article 176 make up in property rights, so it’s necessary understudied for real meaning and logical. Thus it formed the unique real right behavior theory in Japan, although the theory has not been test support and did not become a mainstream theory. But it shows different about the German law system and the French law system on the internal cohesion of the contradiction.Secondly, it is about against the legal issues, as well as the scope of the third person. In a second thing two sell, the assignee can rejection by first obtained registration first assignee in accordance with article 176 accord ownership, which have been obtained for the legal results obtained on the basis of the nature of property rights of unregistered and launched a variety of theories to explain the academic circles. But which of theory explanation because of the contradiction between its own or with the contradiction between system problems, can’t give an explanation which can be reasonable convinced, and definition of the nature of unregistered property rights is still very difficult. Question on scope of the third person has formed a unique "malicious exclusion theory" in bad faith, but the definition of breach of trust of malicious benchmark does not have a unified standard, it can only rely on the judicial practice case to judge, so it increases the judicial burden.Registration confrontation doctrine is not mandatory to register, can guarantee the continuity of registration, so also it can’t produce the credibility of registration. And Japan’s registration is a form of censorship, thus there are a lot of registration error, damaging to the transaction security. Admitting to register the relative credibility to satisfy the protection of transaction security in these precedents for expansion of the interpretation of the civil code of paragraph 2 of article 94.But even these correction and improvement also cannot hide abuses in registration against socialism in Japan. Registration confrontation doctrine with German socialist law system in harmony within the theoretical explanation is difficult, and the weakening of against the registration validity doctrine, registration without the lack of credibility, the problem such as scope of the third person, all of these give us enlightenment. Keep following the unity of content and system in the process of legislative transplantation as far as possible, to ensure the coordination between the internal system and cooperate with each other. Real estate value is huge, so we should guarantee the safety in its property rights transfer. Therefore we should abandon the old registration counter, and fully use the effect doctrine, and realize the combination of real estate registration validity doctrine.