On The Effectiveness Of Advance Registration Of Real Estate

The real estate registration system,as an important registration system,stipulates how real estate property rights can realize the correct change of rights in real estate transactions.The key issue in the real estate registration system is its effectiveness,and only with a complete and clear regulation of its effectiveness can it fully perform its function of guaranteeing the orderly operation of real estate transactions.The most important issue is the effectiveness of the advance registration of real estate.The most important issue is the effectiveness of real estate registration.With the continuous development of socialist market economy and the increase of population,the demand for real estate is expanding,which also promotes the flourishing of real estate transaction market in China.However,the expansion of the real estate transaction market also reveals that there are loopholes in the relevant system and the relevant legal provisions are difficult to support the good operation of the transaction market.The current situation of judicial practice and the typical case search,it is easy to find that in recent years,disputes over real estate transactions arising from the defects of advance registration have been increasing year by year,such as the sale of several houses and the destruction of deeds and back contracts occur frequently.With the implementation of the Civil Code of the People’s Republic of China on January 1,2021,and in conjunction with the relevant provisions of other existing legal norms in China,it is clear that the effectiveness of advance registration of real estate has not yet been clearly specified.In the event of a dispute over the registration of real estate,it is difficult for the theoretical and judicial communities to reach a consensus on whether and how to determine the validity of a transaction because of the lack of clarity of the legislation and the variety of legal norms involved,resulting in the phenomenon of "different judgments in the same case" in judicial practice.Therefore,to clarify the effectiveness of real estate registration can improve the theoretical system of our real estate registration system,on the other hand,can be a light for the subsequent judicial interpretation and other legal norms of the revision.It is necessary to establish a complete system and a unified code of validity in order to guide judicial practice,resolve disputes between parties and guide the good faith performance of real estate transactions between them.In this article,we analyze the concept,legal nature and effectiveness of the registration of advance notice of real estate in the following sections,taking into account the domestic and foreign legislative provisions and the theories of scholars,and finally provide suggestions for the improvement of our subsequent legislation.The first part summarizes the basic theories related to advance registration.Firstly,it is important to compare the controversial legal nature of the system in relation to domestic and foreign scholarly research,and then further examine its effectiveness norms through the study of the legal nature.Secondly,the relevant studies of domestic and foreign scholars are synthesized to conclude that the advance registration of real estate should generally have the effects of preservation of rights,exclusion of enforcement,subordination protection and bankruptcy protection.The second part is based on the current judicial practice in China,and recognizes the necessity of improving the effectiveness of advance registration of real estate in China.Firstly,we summarize and briefly analyze the current status of legislation on advance registration,and then organize the current status of advance registration of real estate in the current judicial practice.Secondly,it analyzes the different controversial views of the courts in the trial by combining some typical cases involving the effectiveness norms.The third part summarizes and analyzes the effectiveness norms and academic theories on the registration of advance notice of immovable property in foreign countries,and explores the current defects of our law on the effectiveness of advance registration of immovable property by comparing their institutional differences.The main analysis is that the legislative model of "absolute prohibition" for the effectiveness of advance registration of immovable property in China is too harsh,and the specific defects of the effectiveness of advance registration in China.In the fourth part,we suggest the improvement of the system by taking into account the experience provided by overseas legislative provisions,the legislative model of the system,and the effectiveness of advance registration of immovable property.The first part analyzes the legislative model of "relative invalidity" for the registration of advance notice in China,and re-examines the effectiveness of the registration of advance notice of real estate in terms of legal and non-legal acts based on the classification of "intermediate acts of disposition".Secondly,we consider the effectiveness of advance registration against non-legal acts,subordination protection and bankruptcy protection for the settlement of private rights disputes.Finally,we add a provision on the effectiveness of advance registration of mortgages based on the fact that security rights are the same property rights as ownership rights.