Legislative Perfection On The Advance Notice Registration System Of The Real Estate

The advance notice registration is an important part of the change and registration system about the real estate. The innate character of the advance notice registration is to endow the registered request power of creditor's right with the force of the real right, giving birth to exclusivity and antagonism, ensuring the expected legal effect of the request power and becoming the important means to safeguarding the rights of the litigants, protecting transaction security and maintaining market credit. The advance notice registration in our Property Law is too abstract to practice. Although The Promulgation of Housing Registration issued by Ministry of Construction and The Promulgation of land Registration issued by ministry of Land and Resources make more details on the advance notice registration, there are also some imperfections. Referring to the legislative experiences of the other countries and areas, combined with the actual situation of our country, this paper analyzes the defects of the advance notice registration system and proposed some opinions and measures on the improvement. In addition to the instruction, this paper is divided into four parts.The first part is about the defects of the advance notice registration of in real estate in our country. This part discusses the defects from three aspects: firstly, the advance notice registration institutions are in chaos. Recently, there are no less than six advance registration institutions in our country, so there is a situation of bull registration. In practice, such situation will give rise to many problems, it not only increase the transaction costs, reduce the transaction efficiency, but can not fully protect the safety of the transactions. Secondly, the advance notice registration's applicable scope is too narrow. The applicable scope in regional stipulations is inconsistent. It has no stipulations on the request power attached condition and deadline, and it also has no provisions about the advance notice registration on special movable property. Thirdly, the effects of the advance notice registration system are defective. Generally, the advance notice registration has three effects, including the effect of preserving the right of claims, the effect of preserving the right of ranks, the effect of preserving the right of bankruptcy. The advance notice registration of our country has the effect of preserving the right claims, but it is not perfect, and there are no stipulations on the effect of preserving the right of ranks or the effect of preserving the right of bankruptcy, no stipulations about the right to plea of creditors', no stipulations about whether or not the advance notice registration be against the right of priority of payment of the construction project.The second part is the necessity about the perfection on the advance notice registration of the real estate in our country. This part discusses the necessity from the two functions the advance notice registration has which can be described as it is the balancing mechanism of coordinating the benefits between the real rights and the claims, and it is an important means to protecting the safety of transaction. This part points out that because of the legislative flaws in the advance notice registration, it can not fully play the role of balancing the benefits of litigants, the role of preventing sells, the role of protecting the safety of transaction, the role of raising the transaction efficiency, the role of reducing judicial costs. So it is necessary to improve the advance notice registration of our country.The third part is the legislative reference to the perfection on the advance notice registration system in real estate of our country. In Germany and Switzerland, the advance notice registration institution are judicial organs, in France Japan and our Taiwan area, the institution are administrative organs, while in Anglo-American Law System and our Hong Kong area, the institution are government departments. In view of the applicable scope, the advance notice registration is suitable for real estates such as land, house and also it is suitable for special movable property. The scope of the advance notice registration includes the request power on the setting, shifting, change, elimination of the property, the special movable that the very method of proclaiming the transference of the right is registration, the claims with conditions and deadline. As to the legal effect of the advance notice registration, we adopt the general"three effects say"which can be described as the effect of preserving the right of claims, the effect of preserving the ranks, the effect of preserving the right of bankruptcy. Laws regarding whether or not the advance notice registration can get rid of the effect of compulsory execution of the court or the levy of the government vary from country to country.The fourth part studies my opinions about the perfection on the advance notice registration in real estate. This part gives the suggestions about the improvements of the advance notice registration by giving synthetic consideration to the defects of our system and learning the relevant provisions of the other countries and areas.â… .unify the organs of the advance notice registration. At present, our scholars raised three different opinions, they think the advance notice registration organ can be the judicial organ or the administrative organ or the notary agency which is a form of the social intermediate organizations. According to the legislation nowadays, combining with the legislative experience of the other countries and areas, in my submission, the advance notice registration organ in our country should be administrative department.â…¡.expand the scope of the advance notice registration. In accordance with the narrow scope of the advance notice registration of our country and with the reference with the legislation of the other countries and areas, I propose some suggestions about the applicable scope of the advance notice registration. First, it can be suitable for the creation, alteration, alienation or termination of the real right of realty. Second, it can be suitable for the claims subject to conditions and deadline. Third, some special movable estate can be applicable the advance notice registration.â…¢. Perfect the legal of the advance notice registration. Firstly, make the contents of the preserving the right of the claims definite. Secondly, increase the effects of preserving the right of the ranks and bankruptcy. Thirdly, whether or not the advance notice registration can get rid of the power of the state is depends on the situation. Fourthly, increase the defense right of the creditors'. Fifthly, the effect of the advance notice registration can be against with the priority of payment of the construction project.â…£. Enact the uniform legislation of the advance notice registration. Reviewing legislation of the other countries and areas and combining with our practice, in my opinion, we should adopt the style combining the"code style"and"special law style". The Property Law has made the principles from the law level, what we should do next is specifying the contents of the advance notice registration. I suggest we should enact the special law- The Registration Law of the Real Estate, in which we can detail the advance notice registration, so as to solve the problems of the advance notice registration has radically.