Research On The Legal Effect Of The Advance Notice Registration

The legal effect of advance notice registration has a relatively mature theoretical basis.However,there are great controversies in theory and practice arising from some problems in judicial practice,such as the effect of advance notice registration in the cases of house sale as a substitute for paying loan,and the priority of advance notice registration of mortgage to seek payments.This paper is divided into three chapters.Chapter one starts from the legal effect of advance notice registration under the current law,based on the relevant provisions of our country’s legal norms,and combines the legislative experience of comparative law to investigate the basic legal effect of advance notice registration.In terms of the preservation effect of rights,under Article 85 of the Implementation Rules of the Interim Regulations on Real Estate Registration,advance notice registration can have the effect of freezing the real estate register.Without the written consent of the registration obligee,the registration organ cannot handle the relevant registration.However,compared with the immovable property right established by official registration,the right protected by the advance notice registration is limited.It does not contain the contents of the real right such as possession and use.It is subject to a number of restrictive conditions,and can only confront certain disposition behaviors of the owner.As far as the effectiveness of sequential preservation is concerned,it can use the order system of real estate registration to reasonably trace the effect of property rights’ changes back to the advance notice registration,which is practically significant to the improvement of the advance notice registration of ownership or mortgage rights.Under the absolutely invalid legislative mode,the sequential preservation effect can effectively ensure the realization of the purpose of rights’ preservation and help clarify the order of registration of restricted real rights.So,it is still necessary to recognize such effect.By interpreting relevant provisions,the effectiveness of sequential preservation can also be found in the legal system,which is compatible with the current legal framework.Complete effect strengthens the preservation effect of advance notice registration.By regarding the registered right as a real right which has completed official registration,complete effect makes it obtain the legal protection equivalent to the real right.But it lacks solid legal basis under the current law.Based on the newly issued judicial interpretations,advance notice registration of mortgage has achieved a certain degree of confrontational effect in the bankruptcy proceedings,which shows the gradual development trend of complete effect in the law of our country.Based on the legal effect of advance notice registration,there are some cases in practice that use such institution to guarantee the creditor’s right,or claim priority to seek payments on the basis of advance notice registration of mortgage.The legal effect that advance notice registration can exert still need to be clarified.Chapter two focuses on the validity of housing sales contract in the cases of house sale as a substitute for paying loan.Then it discusses the possibility of the application of advance notice registration,and the legal effect it can play.In the practice of judicial trials,the “house sale as a substitute for paying loan” clause,which has been made before the expiry of the debt performance period,is often held in a negative attitude.Such clause is often denied to have the effect of real right,and difficult to play the expected role.In order to strengthen the protection of the contract rights,the creditor may set up advance notice registration and use its legal effect to preserve the obligatory claim for the purpose of the change of real right,to indirectly achieve the goal of guaranteeing the creditor’s rights.However,this kind of clause is an atypical guarantee,in which the housing transaction contract will be invalidated because of the false expression of intent.And the advance notice registration will lose its effectiveness because of the extinction of the creditor’s rights.In addition,the creditor may also choose to set up advance notice registration of mortgage,in order to freeze the real estate register and preserve debtor’s property.At this time,advance notice registration of mortgage conforms to the real intentions of the parties,and obtains legal protection as a way to preserve the right of claim for official mortgage registration.It does not apply to the accessory provisions of real rights for security,and it will not subsequently become invalid after the sale contract is determined to be invalid.Under the current law,advance notice registration of mortgage can counter intermediate disposition behavior.In the field of pre-sale commercial housing,it also extends the scope of legal effect.It can freeze the real estate register,but cannot be put forward as the basis of dissent action of execution or exclude compulsory execution.Chapter three focuses on the claim of priority compensation,in the field of presale commercial housing,put forward by the obligee of advance notice registration of mortgage.From the perspective of judicial practice,this paper analyzes and summarizes various opinions formed in the judgments.The reasons for affirming the claim mainly include regarding the obligee as the mortgagee,regarding advance notice registration of mortgage as official registration of mortgage in buildings,or the parties have agreed that the obligee has priority to be paid on the property involved in the case,etc.Such interpretation can strengthen the protection of the creditor’s right,but it is easy to cause the confusion between advance notice registration and official registration of mortgage right,bringing the dispute on the application of law.The negative view is mainly based on the difference in the nature between advance notice registration and official registration,and believes that the creditors is sufficient to achieve the purpose of protecting their rights,so it is not necessary to give them priority compensation status.Another view distinguishes between specific situations and conditionally recognize the claim that the obligee has priority in compensation.Through the comparison of all kinds of viewpoints,it can be found that the preservation effect of advance notice registration of mortgage has its limits.Especially when the obligor refuses to apply for official registration,the obligee can only request the court to order him to cooperate in the process.In fact,there is no effective remedy.With the consent of the parties,the obligee’s priority in compensation is not a manifestation of advance notice registration,but the result of autonomy of will.When the parties fail to reach the agreement and the difficulties in the advancement of this registration that are not caused by the obligee,it is necessary to protect him.At this time,giving him priority compensation status is also in line with the purpose of rights’ preservation.Through the analysis of the effect of advance notice registration,on the basis of preservation effect,the recognition of sequential preservation effect of advance notice registration of the mortgage can support the priority claim of obligee.Under such circumstances,the obligee obtains the priority of compensation through the effective judgment of the court,which is in line with the need of judicial practice and has a reasonable basis to ensure that the legal effect of advance notice registration is fully realized.