On The Compulsory Notarization In Real Estate Registration

Compulsory notarization means when laws or administrative regulations stipulate the matters that should be notarized, the parties must apply for notarization. Otherwise, such matter will not have legal effect. Early in the draft of Property Law, there has been a hot debate regarding whether compulsory notarization should be introduced to the system of real estate registration. However, neither Property Law nor the Interim Regulation on Real Estate Registration refers to compulsory notarization. When we look at the rules of developed countries, compulsory notarization has been widely adopted as the prepositive procedure of real estate registration.This article consists of four parts. The first part introduces the basic conception of compulsory notarization and its current situation, and also summarizes the main argument regarding whether compulsory notarization should be introduced to the system of real estate registration. The second part studies the legal system of civil law countries about the pattern of alteration of real right. It demonstrates that no matter the registration pattern is registration effectiveness or registration antagonism, compulsory notarization can make up for the deficiency through substantial examination. The third part demonstrates the necessity to introduce compulsory notarization into real estate registration from China’s current situation. From the perspective of theoretical basis, the current examination pattern inclines to adopt formal examination from the interpretation of Interim Regulation on Real Estate Registration. Nevertheless, China’s complicated situation of the alteration of real rights in real estate and honesty crisis makes the formal examination insufficient to eliminate all the risks. Only when the registration authority adopt substantial examination can we reduce the hidden danger existing in the process of alteration of real rights in real estate. Moreover, besides the defect of voluntary notarization, the notary organ is naturally corresponding to substantial examination, which makes it necessary to for registration authority of real estate to adopt compulsory notarization in some matters to maintain a harmonious market transition order. From the perspective of practice, the introduction of compulsory notarization is helpful to constitute an integrated property security system and transfer government functions. The last part introduces that the scope of compulsory notarization should be explicit and limited, and focuses on demonstrating the specific matters to adopt compulsory notarization.