On The Legal Effect Of Delivery Possession Of Real Estate

According to the provisions of the civil code of China,the way of real estate real right publicity is registration.Without registration,there will be no effect of change of biological right.In order to clarify the responsibilities and tasks of various organs in the process of registration and improve the standardization of registration,the state promulgated the Interim Regulations on real estate registration.The promulgation of the administrative regulations is aimed at the unified registration of real estate,so as to determine the ownership of real estate rights.The promulgation of the regulations has changed the current situation of unclear rights and responsibilities of multi departments,prevarication and wrangle in the early stage Chattel registration has played a very good role in standardization.However,due to the influence of various factors,the situation that China has not registered still exists,and it is even more common in some places and regions.Objectively speaking,China’s real estate registration system itself has certain defects.In addition,in the implementation process,it will also be affected by such conditions as regional environment and staff quality differences,It can not be absolutely accurate,so the ownership items recorded in the real estate register are sometimes inconsistent with the actual situation.The implementation of commercial housing transaction system in China has only a few decades.In the process of transaction,due to the registration needs a certain period of time,after the buyer and the seller sign the contract,because there is a certain time difference between reaching agreement and completing registration,the buyer’s acquisition of real right inevitably lags behind the agreement between the two parties.During the transfer period,because the registration status of the house has not changed,the seller is still regarded as the owner,at this time,he still has the right to dispose of the real estate.According to the rules of real right change,the sales contract can only have the effect of debt law,but can not cause the change of real right.At this time,if the seller disposes of the house again,and one of the buyers is currently handling the transfer registration,then the other buyers can not obtain the real right according to the contract.What can we do if we can only claim the liability for breach of contract from the seller,which seems to be able to protect the rights of the buyer.According to the residential property of the house,can we really claim the liability for breach of contract To make up for the buyer’s loss,in fact,it is not.For the buyer who has already delivered the possession,the purpose of purchasing the house is to use it for living and solve the problem of having a home.After its decoration,if the seller registers the house to a third person,according to the existing provisions,the third person obtains the property right.Because of the real right,the third party has the right to sue the possessor to return the house,but the buyer pays the house money to occupy the house The law obtains the registration,but also must return the house to the registered third person,embarks from the social populace simple idea,is really difficult to accept! In addition,during the transfer of ownership,if the seller enters the execution procedure due to other disputes,and the house purchased by the buyer is still registered in the seller’s name,the people’s court will treat the property as the seller’s property.Therefore,the real estate purchased by the buyer will face the risk of enforcement,which is obviously unfair to the buyer.The existing mode of real right change regards registration as the only criterion to judge the change and ownership of real right.With the development and progress of society,unscientific places gradually appear.In the process of transaction,if we don’t pay attention to the publicity effect and function of delivery possession,it is easy to damage the rights and interests of the buyer who owns the house legally.Delivery possession of real estate has existed since ancient times,but the registration system is the product of social development.In ancient times,delivery possession was the main way of right publicity.With the gradual establishment of registration system,the publicity effect of delivery possession was restricted,but the effect was not invalid,only weakened,and the publicity effect still existed.In the process of transaction,the ownership of movable property is presumed by delivery.Due to the characteristics of immovable property that cannot be moved or will damage its economic value,delivery possession should also have certain publicity effect.As for the relationship between delivery and registration,if registration is regarded as the publicity method of the legal attribute of real right change,then delivery possession can be interpreted as the publicity method of physical property.With the rise of modern science and technology,registration has become a reality.With the support of science and technology,the effectiveness of registration has been greatly improved and the scope has become wider and wider.It seems that registration is going to replace all the methods of publicity in the past,but it is not.It is an indisputable fact that the publicity effect of delivery possession is declining.However,it is very difficult to stop the large number of "one house,two sales" phenomenon,which leads to unnecessary social contradictions,which needs our attention.As for the change of the ownership of real estate,the current civil code of China does not provide for the publicity effect of the possession of real estate.Registration is still the only effective element to obtain the real property right,because registration makes the change of real right open to the society and makes the public know about the change of property right.Its publicity effect is irreplaceable,but any system is not perfect Because of the natural nature of the possession of real estate,it can show the right of the possessor of real estate to the society,so that its right has the effect of antagonizing the creditor’s rights formed later and the ownership of malicious third party,which can make up for the defects of registration.At this time,although the first buyer’s possession of the real estate does not mean the acquisition of ownership,but it can be a good reminder of the right defects existing in the house,because the civil activities should follow the principle of good faith,the third party can not deal with the seller at this time,in order to avoid subsequent disputes.In addition,based on the fact of possession,we can judge that the latter buyer is aware of the fact that the first buyer has the right to the real estate,thus denying his good faith and depriving him of the qualification of legal protection.In addition,through the fact of delivery possession,we can limit the seller’s re disposition,so as to effectively prevent the emergence of multiple transactions and maintain social harmony and stability.The autonomy of will runs through civil activities.The change of real right is actually the result of the agreement between the two parties.Social life covers all aspects.Besides the registration system,whether in fact or from the perspective of law,we should not exclude other forms of public ownership.Obviously,the delivery and possession of real estate can be treated as other ways of publicity.Both parties involved in the housing transaction,the buyer pays the price and decorates the house.From the subjective point of view,the buyer thinks that he is the owner of the house,and has obtained the ownership of the house,but has not handled the transfer registration.There is no difference in other aspects.Therefore,the buyer’s legal possession of the house has the appearance of external representation of rights.For the third party,as long as they pay a little attention,they can know the fact that the right already exists on the house,and there is no need to spend a lot of time to investigate the reasons behind the registration.Therefore,as the publicity effect of real estate property right change,delivery possession should be paid attention to by the society.It is also unreasonable to deny the right of delivery to the possessor if he insists on the rule that only registration can be obtained only by registration.