Research On The Liability Of Compensation For The Registration Of Defective Real Estate By The Registration Authority

Real estate registration is of great significance for the smooth operation of the market economy.The authenticity and correctness of registration is an important guarantee for the fairness and security of real estate transactions.However,due to various reasons,there are still many problems in the real estate registration in China,the typical one is the defective registration.The registration of defects not only infringes the interests of the right holders of real estate,but also causes risks and hidden dangers in real estate transactions.Although the property law and the Interim Regulations on real estate registration have initially established a unified real estate registration system,they have only made principled provisions on the registration of defects and their responsibilities,and have not solved the disputes and practical problems in the theoretical circle.Based on the property law and the Interim Regulations of real estate registration,combined with China's national conditions,starting with theoretical analysis,this paper studies the problems of real estate defect registration and the compensation liability of the registration authority in the case of defect registration,in order to be beneficial to the improvement of the real estate registration system in China.This paper is divided into five parts:The first part is the definition of some basic issues of compensation liability for immovable property defect registration.Real estate registration means the act that the registration authority records the real estate rights in the register according to the legal procedure and publicizes the real estate rights through the legal procedure based on the application of the parties.The registration of defective real estate refers to the situation that the contents recorded in the real estate register are inconsistent with the actual rights.The compensation liability for the registration of defective real estate by the registration authority can be defined as the compensation liability that the real estate registration authority should bear for the damage of the real estate obligee caused by the defective registration.The second part is about the nature of compensation for the registration of defective real estate.There are two theories about the nature of the liability of compensation for the registration of defective real estate:civil liability and state compensation liability.Through theoretical analysis and combining with the provisions of the state compensation law,the nature of the compensation liability for the registration of defective real estate should be defined as state compensation liability.The third part is the analysis of the principle of liability fixation and the elements of the compensation liability for the registration of defective real estate.In the principle of imputation,there are two kinds of fault principle and no fault liability principle in the academic circle.The author thinks that the principle of fault presumption is more suitable.The constitutive elements of the liability of compensation for the registration of defective real estate include the subject element,the behavior element,the damage result element and the causal relationship element.The fourth part discusses the scope and limitation of the compensation liability for the registration of defective real estate.For the scope of liability,there are three models,namely punitive compensation model,symbolic compensation model and supplementary compensation model.China should adopt the supplementary compensation mode.In view of the state compensation responsibility undertaken by the registration authority,only the direct loss of the victim needs to be compensated at present,but the conditional indirect loss can be explored in the future legal construction of real estate registration.Based on the provisions of the state compensation law,the scope of the liability of the registration authority for the registration of defects should be limited.The fifth part is to discuss the relationship between the fault of the applicant,the fault of the third party and the compensation liability of the registration authority.In case of unilateral fault of the registration authority and its staff,the registration authority shall bear the liability for compensation.If the registration defect is caused by the fault of the third party or the applicant,the registration authority shall not be liable.In the case of mixed fault between the registration authority and the third party and the registration applicant,the registration authority and the fault person shall bear the liability of compensation according to their share.The registration authority shall have the right to recover the compensation from the wrong registration staff or the third party after assuming the liability for compensation.