| In our country, the establishment and development of notarization system came through a winding and long way. Its nature and status was also varying with development of our country's legal system, which brought a debate among many scholars and judicial practices. For so many years, the judicial practices were always devoted to the establishment and development of our country's notarization system, and continued to regulate it.《The notarization law of People's Republic of China》was passed by the 17th session of the 10th standing committee of National People's Congress till 2005, this is the first notarization law of China and it began to push the reform and development of our country's notarization system to a new high. At the time when the new Chinese property law was adopted and the notarization law has been issued for 3 years, I expect to reorganize the notarization system from the notarization system's application in the civil law, and try to use the notarization system to remedy the insufficiency of property theory, and would like to put forward my system design by introduce the notarization system to the property law.In this article, I would like to analyze the issues, such as the necessity and importance of introduction of the notarization system to the property register system, how to carry out the introduction and the system design after the introduction and so on, on the basis of research on the notarization system's development history and the specifications of notarization system in the law especially the property law in foreign country. The new Chinese property law, which was adopted this year, specified that the register authority should take essential censor. Referred to the"Window Censor"which was adopted in many countries and combined with our country's reality, I put forward to introduce the notarization system to the property register system, and make the notarization's essential censor to replace the property register system's formal censor, so that the real property's register system could protect promptly the parties privileges with justice.On March 16th 2007,《The property law of People's Republic of China》was passed by the 5th session of the 10th National People's Congress. One of the key issues of property law is how to establish and complete the real property's register system. The discussion on register examination methods is very essential for the completion of property's register system. The property register methods consist of the essential censor and the formal censor, and the key difference between them is whether the"reality and validity"censor have been taken on the"cause action"for the property change.After the research on the foreign modes, I find that although the attitudes to the property action, the effects of public show, the register modes of Germany, Switzerland, France and Japan are different, the primary modes are formal censor and window censor.View from the present situation in our country, substantive censor by registration office is not applicable to laws and can't reach the objectives laws expect to achieve. Over years, our country' property registration office, registration evidence, registration books, registration procedure and registration efficiency were inconsistent, which brought series of trade security problems. Meanwhile, the registration office personnel, especially those work in the first line of examination and inspection, have been low in their general professional level and cannot clearly recognize and accurately determine the relation between legal fact and laws, always causing errors in property registration and damage the property principle of Public Display and Public Trust. Moreover, the staffs in administrative organs have long been affected by the tradition ideas, lack of service awareness, which also, to a certain extent, make it difficult for clients to go through registration. Although legislators have put forward the idea of realizing unified registration gradually and improving the quality of personnel, it can be predicted that, those problems as the coordination among departments, the selection and training of registrars and working regulations shall be solved first to realize unified registration, which are sure to demand a long process. Chief of all, the nature of property registration organs in our country is not clear. Where a registrar neglect his duty or practice favouritism and thereby infringed upon the interest of clients, the client can hardly get compensation.Real property alteration behavior is the"declaration" of the acquired property or no longer existed property; or the "confirmation" of property acquired by law; but it is not an establishment; registration is not just an administrative permit. The nature of real estate registration and real estate administration are different, which enable the options of real estate registration organ not limited by the management power of the nature of real estate and can be carried out by other office beyond administrative organ, thus to avoid interest-based procedures and resolve diversified settlement procedures. The major function of the real property registration organ is to publicize the real property ownership, which is the examination obligation in formality. At present, China's registration office has not been perfected, insisting on a substantive review of its registration errors and therefore bearing the liability is unrealistic. China has neglected the registration publicity function and unnaturally emphasized on administrative function, which makes registration completely as an administrative duty. Combining with the nature and function of department and interests, it will cause distortion of the contents of the registration. If establishing notarization before registration, combining the nature and function of department and interests, distortion can be avoided to some extent. Therefore, the introduction of statutory notarization system is to supplement the current system of property registration; meanwhile, to some extent, it also reflects that notarization sharing the right of real property management department, which is the manifestation of power socialization.As the relative independence of notarization industry and reasonable institution structure, it reflects the non-administrative and autonomy features. China's notaries'qualification is very strict; notaries must pass the national judicial censor, then are appointed job qualification certificate by the state and with the same or similar legal thinking ability and judgment ability. Meanwhile, monitoring mechanism of the notarization organ is mature and compensation liability is determined; thus, notarization organ has become the optimum choice as the introduction mechanism.View from the implementation, it is the common consensus for many countries, especially those with continental law system, that the notary enter the property circulating field to strengthen the secure and orderly property circulation. Many countries have made relevant rules. 22 provinces, autonomous regions and municipalities directly under the central government in our country have promulgated local regulations, rules and regulatory documentations relevant to notary work. Some of them are involved with notary work of property circulation. In theory, it is necessary to build a mechanism to divide the censor and registration functions of registration organs to achieve a secure and efficient result. From the experiences of Germany, Swiss and France, the notarial departments have inspected the legal act that lead to the alteration of the real right of a realty or related procedures before registration application. Therefore, the acts of law have been verified by notarial department first and can guarantee the alteration authenticity of the real right of a realty to lay the foundation for registration convenience. With the prepositioned alteration security and propriety of the real right of a realty, the notarial departments have no necessity to conduct further inspections into the effectiveness of the acts. The censor of the acts by registration organs is kind of formalism. In the registration censor system, the authorities of registration censor are partaken by notarial department and registration organs, which not only promise a rapid registration but also strengthen the correctness of result. However, the base of implementation of censor authority partaking system is that law imperatively rules that the trade practice must be noted, or there exist the notary practice in the trade market of the real right of a realty. Otherwise, it is difficult to effectively implement the system. Concerning this issue, Japanese laws have not clearly regulated the norary preposition system. However, they have adopted indication system to confirm the identity of right holders in the trade practice of the real right of a realty. The habit is rather solid in Japanese trade practice. Regarding our country, under the condition of unstable trade habit, only the imperative regulation of norary preposition can ensure functions partaking.Through the above analysis of property registration theory, the necessity of introducing a new mechanism to balance the authenticity and efficiency can be seen. Then, further discuss why to choose notarization system as a sound mechanism. After introducing the notarization into property registration system, the author has explored the establishment of notarization introduction system. It needs review of notarization management system of each country to determine the necessary conditions before notarization introduction; that is the choice and confirmation of China's notarization management system: notarization organ is the institution with the nature of public power to provide certification service for the community; the management and supervision towards notarization organ should be"socialized". Meanwhile, the notarization behavior of notarization organ can be subject to judicial review indirectly.When the above requirements are in place, the author has put forward a legal notarization prior system in theory; through real test of prior notarization to realize the real integration of the registration efficiency and registration security of the registration organ.On the basis of notarization prior principle, to further put forward proposals in terms of. At present, Chinese scholars suggest in terms of specific provisions: when applying real estate registration, notarial deed is also needed; if real property is acquired by heritage, bequeath and bestowal, it should notarized by the notarization organ where the real estate is located; in terms of building ownership distinction, the owners conference should be attended by over have of the building owners; the decision made on the conference should be approved by a majority owners of the building; owners of building distinction can apply notarization for the decisions made on the conference from the notarization organ where the building is located; and etc. In addition, the author has also put forward one's own proposals towards introduction of legal notarization system of relevant laws of real property law; for example: suggest adding Article 2"real estate property transfer involved in collective ownership, real property acquired by heritage, bequeath and bestowal should be notarized at the notarization organ where the real property is located"after the item 9 that the establishment of real property will be enter into forces after registration.Unlike the"Window Censor"mode was established and notarization system was forced to carrying out in many countries, our country adopted the essential censor which was carried out by register authority and the property register system without the participation of notarization. Although the legislators have considerations in many aspects, I don't think this mode is good enough regarding to the development trend of foreign mode or our country's reality. It will be the directions with relentless efforts and eternal topic of the times for our countries legislators, legal researchers and legal practices that how to combine the security with the efficiency perfectly. |
PDF Full Text Request