On The Construction And The Improvement Of Real Estate Advance Notice Registration System In China

The core function of Advance Notice Registration System concerns with the sequence of register. When he cannot immediately register at the time of transfer of property rights ,the agent can perform the advance notice registration. Until the formal registration is performed, the time of the formal registration is shifted to the time of the advance notice registration so that the formal registration can confront the registrations which are performed between the advance one and the formal one to make them invalid. In this sense, the author regards the advance notice registration as procedural law of property rights, that is to say, as the part of real estate registering law. In this way, the obligee can better exercise the rights of property law. On the basis of above understanding, the paper is divided into three parts on the ground of different stage of the advance notice registration and following the logic from abstract to concrete and the course of the triggering to the operating mechanism. Chapter One introduces the nature of the advance notice registration. The paper tries to analyze. Its nature from a completely new angel. The scholars from domestic and abroad confine the discussion between property rights and obligatory rights, which cannot get out of the theoretical trouble and cannot really settle the problem. In the law theory system which takes the autonomy of parties'will as the basic principle and reeks for the perfect logic, it seems difficult to try to include some concepts except the principle. In fact, there are conflicts between the nature of advance notice registration and the substantial nature of property rights and obligatory rights. After rethinking the different opinions, the author proposes that the nature of the advance notice registration belongs to kind of priority, which can settle the rights conflicts between obligees. Since the author regards the advance notice registration as the procedural law of property rights, and concludes that the advance notice registration is a legal priority, which can be realized by means of registration procedure. This right is not in the same line with property rights. The advance notice registration system reflects the interference that the legislators bring directly to the distribution social resources. So, the equitable principle of obligatory can be broken by means of the regulations of procedural law. Chapter two introduces the trigger mechanism of the advance notice registration. The operation of any procedure need the related trigger mechanism, and the advance notice registration is no exception. The trigger mechanism that determines the rights and obligations of parties is the prerequisite of the whole system's operation and is the key point of the advance notice registration procedure. Based on the systematic thought of law, the chapter starts discussion with the point that the substantive law is superior to the procedural law and the public interests are more important than the personal interests. Firstly, the author analyzes the trigger mechanism and patterns of transfer of property rights in German law, and proposes that the German law replaces the agreement of property rights by the consent principle, that is to say the register needs the consent of obligors, to settle the problem of substantive examination encountered in the period of factual registration. The consent principle is in harmony with the theory of act of property rights in German Civil Code. Secondly, the author discusses that there is no theoretical restriction to the trigger mechanism to be performed by force in connection with the formalism pattern of obligatory rights. The system of the advance notice registration may replace the consent principle by application principle according to the actual needs. It can also be concluded that the joint-application principle may be amended or broken-through when necessary. In combination with our country's conditions, the mandatory registration will keep up with public interests. Lastly, the author concludes that the triggermechanism of our country should combine the mandatory registration system with the application system. The mandatory registration system should be applied in the field of commercial buildings'advance bookings. Chapter Three introduces the operating system of the advance notice registration. Based on the method of comparative law, it systematically introduces the function of the advance notice registration system. Firstly, the author briefly introduces the object of registration where which rights of claims should be included, particularly emphasizes the special point of the advance notice registration system under the background of our special land ownership. Secondly, the author introduces the legal effect of the advance notice registration system, which can be divided into the guaranty effect and the sequence effect. The guaranty effect is invalid wholly or partially when the disposition which happens after the advance notice registration of land or rights hampers the former rights of claim. The sequence effect refers that when the party transfer some kind of rights, the sequence of the rights depends on the date of the advance notice registration. The guaranty effect is the premise of the sequence one, because if there were no relative unvalidility that is secured by the former, the latter would not take place. The sequence effect is the core of the advance notice registration. Just because of its existence, the transfer of property rights that happens after the advance notice registration could be made invalid. By doing so, the aim of the guaranty effect could be realized. In this sense, the core function of the advance notice registration is the sequence effect, which the guaranty effect is subsiding one. Besides this, this chapter also discusses the examination of the advance notice registration and the responsibility of wrong registration, as well as the transfer of and the extinction of the advance notice registration. Lastly, the author compares the system of registration and points out the similarities and differences between...