Research On The Effectiveness Of Real Estate Advance Registration Of China

In order to prevent "a room two sell" lead to serious damage the legitimate rights of buyers,protect the rights of property buyers in the future for the complete real estate property rights and maintain the real estate transaction security and order,China formally established the advance notice registration in the property law promulgated in 2007.The regulations of current law on notice registration is only principled regulations,especially in the aspect of effectiveness is very short and improper.So it often appears these situation that damage the notice registration obligee's legitimate rights and loss function and value of notice registration system.Consequently,this thesis studies outside the method at the same time,by the advance notice registration effectiveness from to achieve the purpose of advance notice registration system,exert the function and value of advance notice registration system,combined with the relevant laws and regulations in our country,from the Angle of ought to be the advance notice registration effectiveness is analyzed in our country.This thesis is divided into five parts:Chapter one analyzes on the actual state of legislation in the notice registration effectiveness and the problems of the judicial practice.On the one hand,our laws and regulations and judicial interpretation on the effectiveness of the notice registration is only principled rules and is not perfect.On the other hand,although some local statues on the effectiveness of real estate notice registration have refined and perfected,the legal level is low that applicability is not widespread and is not perfect.Because of the defects in the legislation,there are some related problems in enforcement procedures and bankruptcy proceedings.This thesis directs for comparison investigation and analyzing the notice registration of China through combining with cases and analyzing the related problems in the judicial practice review.Chapter two inspects the legislations and theory viewpoints of the effect of the intermediate disposition,cis-position preservation and bankruptcy protection in Germany,Japan and Taiwan.For the effect of intermediate disposition,on the one hand,they think the act of disposition is relatively ineffective,on the other hand,German law and Japanese theories and cases admit that the advance notice registration can rule out the enforcement.With regard to the effect of cis-position preservation,Germany and Japan stipulate that when the request protected by notice registration is realized,sequence of the resulting real property priority is pursuant to the time the notice registration established.With regard to the effect of bankruptcy protection,German law has a specific provision that in the case of notice registration obligor into bankruptcy proceedings,the notice registration obligee still have the right to request to fulfill and the real estate is not included in the bankruptcy property.Chapter three studies the effect of intermediate disposition of China.Firstly,the act of disposition is relatively ineffective and the acts of disposition becoming impairment manifests that the third-person's real property is incompatible with the real property set by realization of claim of notice registration.Secondly,notice registration can't rule out attachment and levy.But,during attachment,with the official registration conditions,the notice registration obligee have the right to do the official registration.And,notice registration can rule out enforcement and succession.Thirdly,oblige can directly ask the obligor to carry on the official registration or the third party to do correction of registration once its conditions are obtained.Chapter four studies the effort of cis-position preservation of china.On the one hand,distinguish between sequence preservation effect and cis-position preservation effect and the cis-position preservation effect only occurs on several limited property rights which can be coexistent on the same real estate.On the other hand,Sums up the suitable situation of the effort in the usufruct of real property and security of real property.Chapter five studies the effort of bankruptcy protection of China.We should clearly stipulate the special effort of notice registration in bankruptcy proceedings and it has the obvious difference with ordinary creditor's right,exemption right and recall right.In bankruptcy acceptance stage,the realization of the right of obligatory claim after the notice registration is not restricted by the principle of invalid individual pay and the option of contract performance of bankruptcy administrator.In bankruptcy liquidation stage,it should have priority of compensation over ordinary creditor's rights and accord to the time of registration to determine compensation between the exemption right.In bankruptcy settlement stage,the right of notice registration obligee is not affected by the composition agreement.In bankruptcy reorganization stage,the right of obligatory claim after the notice registration also restricted by business protection and it should be separately disclosed in the vote grouping of reorganization plan.Obviously,notice registration oblige have right to participate the vote of reorganization plan.