Research And Analysis On Advance Notice Registration

Generally speaking,if the parties cannot complete the formal registration for certain reasons in a real estate transaction,in order to guarantee the creditor's right with the claim for a real right,the parties can perform a registration of the creditor's right.That is so called Advance Notice Registration.The Article 20 of Real Rights Law of People's Republic of China(“PRC”)clearly stipulate the Advance Notice Registration of PRC.There have been 10 years since the establishment of the Real Rights Law of PRC.However,there are still a lot of disagreement on the understanding and application of Advance Notice Registration.The foundation of advance notice registration is that obtaining real right is out of sync with obtaining creditor's right.Creditors are always trying to find a way to protect his/her right because of the character of equality and relativity for creditor's right.Advance notice registration has become an important way for enhancing the effect of creditor's right by making it obtaining certain effects of real right.However,the nature of creditor's right has not been changed completely.If the holder of advance notice registration claims the real right directly,it is not allowed.If the holder of advance notice registration trusts the registration book,then we shall maintain the credibility of registration book and recognize the right of such holder.However,the credibility of registration book does not include the creditor's right protected by advance notice registration.The typical object for advance notice registration is the claim for real right transfer.If the ownership of property will not change right away,but will change in the future or after certain event,and such timing and event cannot be prevented by obligator himself/ herself,i.e.the possibility of obtaining real right is very high,then the advance notice registration is applicable too.The PRC regulations related to the scope of application for advance notice registration is limited,which shall include other systems such as legacy supporting agreement,right of preemption etc.Meanwhile,subject to the specified object of real right principal,advance notice registration can be applied in presale commercial house transaction.We should recognize that the buyer of presold commercial house has obtain an expectant right,and allow such buyer to pledge his/ her real right that will obtain in the future.For the effect of advance notice registration,we should learn from German civil law,recognize the relative character of the effect of advance notice registration to ensure the stability of transaction and protect the real right.Also,recognize the effect of priority.If the property owner's action won't harm the registered claim,then based on the effect of priority,the holder of advance notice registration can obtain the priority.Meanwhile,we should let the advance notice registration become fully effective,that is not only for the disposal action of obligator but also for other non-legal act such as act under coercion,bankruptcy etc.The effect of advance notice registration depends on the protected creditor's right,if the creditor's right distinguished the effect of advance notice registration will distinguish accordingly.For the perspective of protecting creditor's right,it is not suitable to add a separated effective period on advance notice registration.We should at least make sure the advance notice registration can be effective during the statute of limitation for the creditor's right protected by it.