On The Real Right Of Real Estate

In the judicial practice of our country,the real right protection mechanism shows the chaos of "total negation" or "over-protection".The traditional property law stipulates that the registration of the real right is the basis of the change of the real right,which leads to the obvious lack of protection of the real right.In recent years,the concept of "factual rights" has been cited by the judicial trial.The first,the "Property Law" has a number of judicial interpretations.Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Property Law of the People's Republic of China Article 2,The parties have evidence that the record of the real estate register does not conform to the real right state and that it is the real right holder of the real right and the real right holder is required to confirm the enjoyment of the real right.It is determined that the real right of the unregistered real right holder is a legal right that the right can claim the court to restore its property when it is infringed,so that the court in the judicial discretion,more consideration of objective factors,Corrected the past only to "whether to register" as a property to determine the attribution of property.Secondly,in the course of practice,with the introduction of policies such as "house order" and "property tax",more people adopt concealed registration means to circumvent these policies,resulting in the registration of the nominal person and the real right person does not match The situation is endless,the way to seek judicial relief of the fact that the number of real rights also will rise.Facts Although the concept of real rights in the trial community has been frequently cited,but in the theory is different opinions.In our country,Professor Sun Xianzhong and Chang Peng'ao made the first definition of the concept of the real right of real estate: "Real property factual property is not the legal registration of the way of characterization." Professor Chen Yongjiang is also based on intermediate property Change the situation,put forward the law should be given to the possession of unregistered rights holders of the "transitional property" that the de facto real right.Wang Quandi in the "real thing: the theoretical predicament and the way out" in the article,the critical fact that the lack of real rights of the basic core,deviated from the real right of legalism,does not belong to the full sense of the real right.Foreign matter on the real right of the theoretical research also have their own style,France to take a "contract delivery system" to determine the ownership of the right to belong to the meaning of the parties that is true,as long as the real right to prove that the transferee of the real right is based on the seller Real meaning that can be obtained real right.Germany is in the "rights registration system" at the same time,given the fact that the real right of "objection registration","correction registration" and other rights,in order to maintain its property rights are not infringed.China's traditional theory of real right change is based on registration,registration for real estate ownership of the ownership of a decisive.However,the registration is only the right way of publicity,is a form,not the nature.And the registration of real estate in China and the real estate registration agencies compensation system there are flaws,therefore,the legal real right to the fact that real property as a supplement to improve the property law system.In fact,the real right in the trial practice of our court is divided into the following three categories,the legal facts of the real right,in line with the parties the intention of the fact that the real right,the transfer of the facts of real property,legal facts are mainly due to transaction Property rights change;in line with the parties the intention of the fact that the real right is the actual rights of people based on the agreement will be registered in real estate under the name of the real property;transfer of the fact that the real right,in essence,has not yet registered a registered status.Although they are different in nature and effectiveness,they can form a complete system to distinguish between legal rights.The real right of thing in our country court trial practice mainly divides into the following three kinds,the legal form fact property right,conforms to the party actuality real right,the transfer type real right.Legal factual property rights are mainly non-transactional changes in real right,such as changes in the property rights arising from the court decision,the court ruling on the date of entry into force of real property rights change,rather than in the real estate registration After the formalities occurred in the effect of changes in real right,in which case changes in real property can be against a third person.In fact,the "borrowing to buy a house," a large number of cases emerged,but this agreement can only be effective internal,can not fight against the third party in good faith.Transfer of the type of factual property rights,in essence,is given to the court has been occupied but not registered buyers to a real right to protect the status of the transfer of real right is an intermediate right.Although these three types of factual rights are different in nature and effect,they can still form a complete system to distinguish legal real right and protect the real right person.In view of the lack of practical real right in theory and practice,the author believes that from the legislative and judicial aspects to define the real right,first of all,from the legislative recognition of the legal status of the real right,that is,Secondly,in the judicial practice,not only in the protection of the facts of the real right to distinguish between the existence of goodwill third person,but also to regulate the facts of the real right of various types of proof of the problem,and strive to To improve the current chaotic judicial trial.