Study Of Real Estate Legal Notary System

The establishment and development of notarization system has gone through a tortuous and lengthy process in China. It is nature and legal status varies along with the development of China's legal system, which triggers debates among some scholars and judicial practitioners. For years, lawyers have been committed to the establishment and reform of Chinese's notarization system. By constant revising, until 2005, "Notarization law of People's Republic of China" was passed at the 17th meeting of the tenth National People's Congress Standing Committee. This is the first notarization act of our country, which starts to push the reforms and developments of the notarization system to a new climax. While many other countries have generally established "window review" model in registration authority and carried out mandatory notarization, Chinese's Property Law adopts "substantial review" mode and rejected the practice that the property notarization mechanism involves in property registration system. Although some legislators have other considerations, domestic model is imperfect either from the developing trend of foreign node or from China's actual conditions. From the perspective of applying the law, this paper will restructure the notarization system and make a comparison to related property theory, which also try to make up for the insufficiencies in existing property theory. The initial design of the system would be on the basis of bringing the notarization into real estate property rights registration system. Except the abstract and the conclusion, there are four parts in this essay:The first part discusses the basic principle of statutory notarization in real estate. The evolution of notarization system especially the concepts of real estate's notarization would be introduced in this chapter. With deeper reforms in notarization system and the promulgation of "Notarization law of People's Republic of China", notary in nowadays China reflects a general preference for more standardized and pervasive in public life. Although current provision contains the contents of creditors' right and family relationship, it doesn't refer to property right By studying notarization system abroad we could found that the notarization which has been popularized in public daily life has also become a significant method in property registration system. That's why we should consider introducing notaiization mechanism into our real estate registration system. Registration review's development tells us that it has gone through a process from substance to form. Although property registration review modes abroad differ in treating property transfer, publicity effect and registration methods, they still have one thing in common, that is, they use almost the same registration procedure which make itself free from reviewing the substantial content of register information but let the notaiization procedure to defuse the risks and ensure the security of real estate transactions. Therefore, introducing notarization procedure into real estate business system is a feasible approach that helps to lay the review of behavior before registration.The second part describes the status quo of real estate's statutory notarization in our country. By parsing further about the deficiencies in existing property registration system and the advantages of statutory notarization, we may comment on the viewpoint that opposing the introduction of statutory notarization in real estate. Our real estate registration system takes notification as principle, which using the registration to notify the public about the transferred results in real estate. But that means doesn't guarantee accuracy and legitimacy of the recorded information. The accuracy of registration is so significant because it tends to bring dispute especially when involving with the interests of the public and the nation. The harmony of market economy and social stability require a preferable registration system. From the perspective of institutional supply, it is improper for registration offices to undertake tasks of substantial review because registration offices belong to administrative organs and it's prone to bring a embarrassing situation that the nation has to investigate itself once he becomes one party of a civil action. Besides, it's uneconomic to repeat the investments in registration offices to ensure a judicial substantial review results while notary offices already have corresponding conditions; and it's also improper for private layers to do so for they always on behalf of the interests of their clients and cannot stand on a neutral role. It's the very time for notary offices to take over the function of substantial review for they can provide varies specific advantages such as they are non-profit certification institution and bear corresponding civil liabilities. There is one point should be emphasized is that notarization must exist as a statutory form Since there are still dissenting voices on the issue that whether we should introduce notarization mechanism into real right field, to refute dissident who argue that rejecting the introduction is for public convenience is indispensable. Further demonstrations in this part put forth the conclusion that the introduction of notarization is a necessary choice for real estate registration.The third part makes a comparison of notarization systems between France and Germany. Continental law system supports statutory notarization in real estate ownership transfer because it can maintain moderate intervention in nationwide economic activities and momentous legal actions. With the combination of registration system, statutory notarization promotes accuracy and efficiency though it is scope and effectiveness still differs in different countries.The last part provides suggestions for legislator. Firstly, it needs to analyze value-orientation and legislative principles in real estate's statutory notarization, and then follows the design of that system The legal status and function of statutory notarization would be a stress. And the most significant standpoint the author hold is that notary offices must participate in property registration, which means integrates the function of notary offices and registration offices wherefore they can complement each other and achieve expected effects described above. As a statutory element before register process, notarization will determine the validity of a property registration and keep consistency with existing "real right" system.