Protection Of The Rights Of Unregistered Real Estate Buyers

In practice,it often takes a period of time from the conclusion of the contract to the registration of the property.Even if the buyer has paid all the price,he still has not obtained the property of the house.At this time,if the seller's right to dispose of the house is deprived or restricted,the risk can only be borne by the buyer.The legislators of judicial interpretation draw lessons from the relevant concepts of the right of expectation in Germany and give special protection to the buyer in this special stage according to Articles 28 and 29 of the ?Regulation on objection and reconsideration?.Although Article 29 is called the expectation right of housing consumers,there are no overlapping relations between Article 29 and Article 28,but cross competing relations.The reason for the low review standard of 29 articles is not only the preferential protection for consumers,but also the consideration of survival right of the buyer.Its rationality can be found from the theory of factual property right.The factual property right is composed of possession and payment of the price.It strengthens the publicity effect of possession by fulfilling the obligation in the debt law,so as to further strengthen its real right nature.The core of the theory of factual real right lies in the balance of interests,and the legislative thinking of "expectant right" is also to make the balance of interests between the applicant and the buyer.Although the real right owner has achieved a different status from the general creditor,and the protection of the real right owner has become the consensus of the academic community,it will have a negative impact on the transaction security because of its crypticity.In the process of applying this clause,we should not only identify the specific elements,but also consider the particularity of "expectant right" under the special circumstances such as paying debts with houses,buying and selling houses in the future.In particular,the courts at all levels have different opinions on the issues concerning the priority protection of "expectant right" and mortgage.The reason is that the property law has no clear rules on its application order,and there are some contradictions in other legal documents,resulting in the deviation of application in practice.Starting from the source of expectant right German law,the author arranges the theory and controversy of expectant right in German law,summarizes the characteristics which is recognized by scholars,and concludes that Article 28 and 29 of the provisions on objection reconsideration only give negative defensive right to the buyer,which is only a strengthened claim in essence.It is different from the expectant right which is based on the precise real estate registration system in German law.The relationship between it and mortgage is that the mortgage should be the priority in principle.Only when the mortgage is established later and the mortgagee is malicious can the buyer's interests be protected.Due to the limited nature of the objection to execution,it still needs the cooperation of other procedures to complete the transfer of real estate.In practice,the right way is to bring a suit of performance rather than a suit of confirming rights.To some extent,expectant right can apply the relevant provisions of complete right in theory,but in the situation of bankruptcy and liquidation,and the damage to the house,the person who has the "expectant right" may have a special position in theory,but it is really difficult in the actual operation.At present,the method of protecting the buyer of unregistered real estate through the ?Regulations on objection reconsideration? has obvious characteristics of transition period.After all,substantive rights should be regulated and protected by substantive law.In the process of compiling civil code in the future,it is necessary to integrate judicial interpretation and return to substantive law protection.