Research On The Prior Validity Of The Advance Notice Registration Of Mortgage In Compensation

Article 20 of the Real Right Law of our country outlines the system of the advance notice registration,and it stipulates the effectiveness of its protection by restricting the real right person to dispose of the property,and it stipulates its scope of application through an open-listed approach.Regardless of practice or legislation,it is recognized that the establishment of mortgages for real estate and pre-purchased mortgages for commercial housing can be registered in advance.In judicial practice,whether the advance notice registration of mortgage has a prior validity in compensation is controversial.In order to solve this practical problem,this article analyzes the concept of the advance notice registration of mortgage,analyzes the judging ideas in judicial practice,and further considers this issue from the perspectives of interpretation theory and legislation theory.This article mainly consists of five parts:The first part of the main gives the advance notice registration of the mortgage concept of a analysis,and on this basis,explores the relevant issues arising in judicial practice.This article believes that Article 20 of the Real Right Law of our country only stipulates the validity of protecting rights of the three types validity of the advance notice registration in German law,and the way of rights protecting is also different from German law.In order to compensate for the lack of effectiveness,the judicial interpretation conferred the validity of mandatory enforcement on the advance notice registration of real estate sales and pre-sale of real estate,giving the buyer priority to receive compensation.However,the advance notice registration of mortgage that has not yet been enhanced by the judicial interpretation has brought about new problems in judicial practice.Is the advance notice registration of mortgage having a prior validity in compensation?The second part mainly takes the issue of the prior validity of the advance notice registration of mortgage in compensation in judicial practice condition a careful inspection.This article believes that the idea of the judgment put forward in the "Chen Siqi Case" published in "the gazette of the supreme people’s court" does not really clarify the issue of the prior validity of the advance notice registration of mortgage.On this basis,this article further summarizes and analyzes the judging ideas of different opinions in judicial practice,sums up the 13 kinds of judgment ideas adoptedby judgment documents with affirmative opinions and the 5 kinds of judgment ideas adopted by judgment documents with negative opinions.Various types of judgment ideas were separately counted.The third part mainly makes a analysis of the theory of interpretation of the issue of the prior validity of the advance notice registration of mortgage in compensation.This article finds that the positive theory can be divided into the absolutely positive theory and the relatively positive theory,and at the same time,in order to satisfy the market’s pursuit of safety value,we should not take the negative theory.Since the path of the absolutely positive theory and the path of the relatively positive theory of interpretation are all lacking in rationality,we can only seek legislative solutions to this problem.The fourth part mainly discusses the various approaches of the legislative theory to protect the pre-mortgagee.This article argues that based on the pre-purchase mortgage system and the legal protection of transaction security,we should take the "auto-transfer" mode to protect the pre-mortgagee when the pre-purchase obtains the ownership of the house.When the pre-purchaser fails to obtain the ownership of the house,we should give pre-mortgagee the subrogation right to protect the pre-mortgagee.The fifth part mainly probes into the system principle of the new type of the conservation force of the advance notice registration of mortgage and further puts forward the legislative suggestions on the constitutional elements and legal effects of the subrogation right of the pre-mortgagee.This article argues that in order to preserve the claims of the pre-mortgagee,the right of subrogation of the pre-mortgagee should be modeled in accordance with Article 73 of the Contract Law,Article 1166 of the French Civil Code,Article 423 of the Japanese Civil Code as well as Articles 242 and 243 of the "Civil Law" in Taiwan of China,and further refer to Article 30 of the "Land Registration Rules" in Taiwan of China,the provisions of the subrogation application system should be stipulated in the Real Estate Registration Law so that we can provides adequate protection for the pre-mortgagee when pre-purchaser is remiss in obtaining the ownership of the house.