On Bona Fide Acquisition Of Advance Notice Registration

The advance notice registration system is a new legal system established by the Property Law in our country. There is a dispute about the nature of advance notice registration, but at present the majority view is that the advance notice registration is not a real right in reality, and this view has also been adopted in legal practice. Since the bona fide acquisition system only protects the acquisition of real rights, there is a question whether advance notice registration, which is not a kind of real right, shall be protected by bona fide.This dissertation is divided into six parts.The first part briefly introduces the advance notice registration and the concept of bona fide acquisition. After reviewing the two kinds of system in the historical development of civil law in our country, this part points out their characteristics and function orientation under the Chinese law. Before the Property Law came into force, the advance notice registration had been regarded as a real right in legal practice. After the enforcement of the Property Law, although the advance notice registration, still has some characteristics of a real right, it should no longer be regarded as a kind of real right but only a means of guarantee. Before the Property Law came into force, the bona fide acquisition system of real estate was only accepted by the judicial practice of the Supreme Court. Article 106 of the Property Law confirms that the bona fide acquisition system can be applied in both the movable properties and the real estates. However, due to the fact that advance notice registration is not a real right, the bona fide acquisition system cannot be applied in advance notice registration system. That constitutes a legal loophole which needs to be filled.The second part analyzes the rationality and necessity of the application of the bona fide acquisition rule in the advance notice registration system in our country. It discusses the reason for establishing bona fide acquisition rule in the advance notice registration in China from three aspects respectively. Firstly, the transaction security needs to be protected. It points out the value of the bona fide acquisition rule in the advance notice registration system through analyzing the significant role of the bona fide acquisition rule in the advance notice registration system in protecting transaction security in civil activities. On the basis of Marxist legal philosophy, through the analysis of the interaction relationship between law and economy, it reveals the important role of the bona fide acquisition rule in the advance notice registration system which plays on transaction security protection in market economy. Secondly, followed by comparative analysis, through system interpretation of Article 892 and 893 of the German Civil Code, it concludes that foreign legislations and cases also support the bona fide acquisition rule in the advance notice registration system and that is a good reference for the research of law in our country. Although the advance notice registration in Germany law also is not a real right, it is similar to a limited property right. Article 892 of the German Civil Code recognizes bona fide acquisition in the land rights and the rights of this kind of right obtained by the legal behaviour. Article 893 also expands bona fide acquisition into the right disposition. When advance notice registration is set up, the consent of the concerned will be a kind of right disposition. Through Article 893 of the German Civil Code, article 892 shall apply mutatis mutandis, and the bona fide acquisition rule can be applied in the advance notice registration, and that is worthy of reference for our country. Finally by hermeneutic method, regarding a limited property right in good as the object compares the similarity with advance notice registration system by legal action, trust in the registration of real property register, and have certain property rights characteristics. According to the similar practice and the same processing mode, the application of methods to fill the legal loopholes supports the possibility of bona fide acquisition applied in advance notice registration system in our country.The third part puts forward the components of bona fide acquisition in the advance notice registration, which is different from bona fide acquisition in real estate property rights. The first is the difference between the registered right and correct status in real property register book. Article 106 of the Property Law points out that bona fide acquisition occurs in the situation where the person with unauthorized disposition disposes the movable property and real estate. However, based on a logic premise that the person with unauthorized disposition disposes, this article is not perfect. In case such as balance of the mortgage, if the register book that had been registered by error before the sequence of mortgages was even not be logged off, the holder of the real estate is not the person with unauthorized disposition. If a register error occurs, such as former mortgage sequence is not logged on the register book because the holder of the real estate is not the person with unauthorized disposition, thus it is unable to apply the rules of the bona fide acquisition, and it cannot protect the negative trust of the latter sequence mortgagee. Therefore components of bona fide acquisition in the advance notice registration should include the register error in register book, but not unauthorized disposition. Secondly, the goodwill of the components of bona fide acquisition in the advance notice registration should be distinguished from credibility of real property register and goodwill of bona fide acquisition in movable property by different criterion for goodwill. Credibility is more reliable than the appearance of the possess due to register, so the goodwill of bona fide acquisition in real estate property rights should be below the bona fide acquisition in movable property in goodwill criteria, and in the bona fide acquisition of real estate property rights goodwill should be presumed. These rules also apply to the bona fide acquisition in advance notice registration. Regarding the time for bona fide acquisition, this dissertation is different from the points of view of most of the domestic scholars. Since after application, registration conduction process is dominated by the registration authority, any delay in registration authority or changes taken place in trade that the creditors could not control will lead to adverse consequences which should be borne by creditors themselves, and this does not seem to be very reasonable. And the bona fide acquisition rule requires creditors’ burden of reasonable price. When the application of advance notice registration is submitted, the creditors are likely to pay reasonable price by money. If there is any change taken place in trade leading to the fact that creditors know the register error conditions, the result that we deny bona fide acquisition of the advance notice registration, can’t safeguard the interests of creditors with goodwill. Therefore this dissertation concludes that a time point for bona fide acquisition of the advance notice registration should be the time of application for advance notice registration. Obtaining the advance notice registration through the legal behavior is an important component in bona fide acquisition of the advance notice registration. The legal act in this component is the one in paid, but for the agreements of the advance notice registration, it cannot be distinguished from paid for free. Based on subordination of advance notice registration, paid legal actions should be against the creditor claims guaranteed by the advance notice registration, not against agreement to set up the advance notice registration. And for the advance notice registration of such mortgage through unilateral and gratuitous mortgage contract, paid legal actions should not be overemphasized. The transfer of advance notice registration along with the guaranteed creditor’s rights transfer is directly based on the law, but not based on legal behavior, and therefore this kind of advance notice registration should not be classified as the protection under the bona fide acquisition rule. The last component is to complete the advance notice registration. The creditor could acquire the advance notice registration on the ground of bona fide only after the advance notice registration was recorded in the realty register. Before the promotion from the bona fide acquisition of advance notice registration to the formal registration, under the condition that the correction of the register book which affects the advance notice registration occurs, even if we admit the position effect of bona fide acquisition of the advance notice registration, as the effect of creditor claims guaranteed by advance notice registration exists only between the original obligee in the register book and the obligee with advance notice registration, the effectiveness of the sequence should be that the real obligee in the register book is not legally binding. In order to protect the interests of the obligee of advance notice registration obtained by bona fide acquisition, the German method of handling, namely making note attached to the register book at the time of correction of the registration in register book, can be drawn from.The fourth part preliminarily discusses about the legal effect on bona fide acquisition of the advance notice registration, such as the legal effect on the obligee with advance notice registration, real obligee and original obligee in the register book and the legal effect about registration authority. Before advance notice registration becomes formal registration, the holder of the real right is not entitled to dispose the real estate without the consent by the obligee of the advance notice registration. If the oblige of the advance notice registration can prove that the guaranteed right exists, according to the subordination of advance notice registration, the advance notice registration can also apply the presumption of the register book. When advance notice registration becomes formal registration, based on the presumption of the register book, the obligee of the advance notice registration can require the obligee in the register book to cooperate for completing the formal registration. The real right holder is entitled to require the person who made unauthorized disposition to be liable for damages or return the unjust enrichment, and the registration authority will also be liable to pay compensation for registration errors.The fifth part mainly discusses other issues related to the system of bona fide acquisition of the advance notice registration. The first question is the negative trust protection of the real estate register book. Since the Property Law in our country does not have provision about that, if the negative trust protection is not admitted, the obligee of the advance notice registration will still take burden of rights, and the effect of the bona fide acquisition rule and credibility of real estate register book will be discounted. Therefore, the role which Article 108 of the law plays on shall be applied in order to admit the negative trust protection of the real estate register book. Secondly, advance notice registration is not only applicable to forward delivery house by real estate development enterprises. If one party of the couple disposes their common property without authorization, for example, the husband or wife sells a house or sets it to mortgage, the other party in this trade is also entitled to require him or her to set up the advance notice registration, and then the third person can enjoy the bona fide acquisition of advance notice registration. Finally, when advance notice registration is setup in imitation dispose of property, since there is no error in register book but there is just the error of the transaction object, it is not in conformity with the doctrine of real estate trust. Therefore, the bona fide acquisition rule could not be applied in imitation dispose of property when setting up advance notice registration.The sixth part puts forward the legislative suggestions and forms the legislative proposals. According to the principle and method of hermeneutics of civil law, hermeneutic method to apply Article 106 of the Property Law should be used to fill the legal loophole that has been revealed and to confirm legal basis for bona fide acquisition of advance notice registration. Standing on the position of legislative theory, it suggests adding the provisions of the Property Law about the bona fide acquisition rule in the advance notice registration. Based on that, it puts forward the legislative proposals about attaching notes on register book when correction of the register book appears after the bona fide acquisition of advance notice registration to protect obligee of the advance notice registration. Finally, according to the actual legal environment in China, it formulates the structured and logically clear legislative proposals. It gives advises to add paragraph 3 after Article 20 paragraph 2 in the Property Law as "the establishment of advance notice registration shall be subject to the provisions of Article one hundred and six of this law." Besides, it advises to add paragraph 4 after paragraph 3 as "after having obtained the advance notice registration according to the provisions of the preceding paragraph, when correction of register is logged on the register book according to the provisions of paragraph 1 of Article 19, the rights of the real estate registered before correction should be regarded as being continuously existing within the scope of the advance notice registration."...