On The Compensation Liability Of The False Registration Of The Real Estate Registration Agency In China

On January 1,2021,China’s Civil Code was officially implemented,and related matters related to the registration of immovable property were codified in Section 1 of the Property Code.Among them,Article 222 of the Civil Code on the liability for compensation for incorrect registration of immovable property has received widespread attention and discussion from the academic community.However,Article222 of the Civil Code has taken over the provisions of Article 21 of the Property Law,without any effective additions or repairs to it,There have also been no answers to controversial issues related to the liability of real estate registration agencies for damages due to incorrect registration.The real estate registration system is the most important way to protect the rights and interests of real estate from infringement,protect the legitimate rights and interests of the parties involved in the transaction,and maintain the normal transaction order of the real estate market,with a certain degree of credibility.The focus of disputes in China’s academic circles about the incorrect registration of real estate registration institutions is mainly on the inconsistent determination of the nature of liability,the inconsistent application of the principle of liability attribution,the unclear determination of the form of liability,and the uncertainty of the compensation method and scope.The research on the compensation liability for the wrong registration of real estate registration institutions can help solve the judicial dilemma and promote the progress and improvement of relevant theories.In judicial practice,errors in the registration of real estate in China have shown many cases of different judgments in the same case,directly reflecting the pure problems and shortcomings of relevant legislation.In the judgments of different cases,it is also possible to more intuitively explore the path to solving the problem.Real estate registration error refers to a situation where the actual situation of the real estate does not match the relevant rights recorded on the ownership certificate of the real estate.Real estate registration errors are closely related to the review modes adopted by real estate registration agencies.Currently,there are two main types of registration review modes adopted by countries around the world,namely,substantive review mode and formal review mode.Previously,China’s provisions on the mode of real estate registration and review have been relatively vague.After the implementation of the Civil Code,there are still no clear provisions on this.However,Article 212 provides for specific requirements such as inspection and inquiry when real estate registration agencies conduct registration and review,which has gone beyond the scope of formal review.At the practical level,the standard of formal review is still widely used by real estate registration institutions everywhere.Therefore,the current mode of real estate registration review in China is mainly based on form,supplemented by substance.This view is mainly drawn by analyzing and comparing the relevant legislation and registration review models of real estate registration in various countries(regions) around the world,and combining with relevant legislation and judicial decisions in China.Under this review mode,the main manifestations of real estate registration errors in China are: registration errors caused by false materials submitted by the registration applicant,registration errors caused by the failure of the real estate registration agency to fulfill its strict review obligations,and registration errors caused by the mixed fault of the two.Since the era of the "Property Law",there has been no consensus in the academic community on the nature of compensation liability for incorrect registration by real estate registration agencies,and until the era of the "Civil Code",there is still no definitive conclusion on the nature of liability.Scholars who advocate the theory of state compensation liability believe that the identity of the parties should be the main basis for determining the nature of liability,but this theory has no legal basis to support and is not generally persuasive.In determining the nature of liability,we should proceed from the perspective of maintaining social fairness and justice,pay attention to protecting the legitimate rights and interests of victims,simplify the procedures for victims to obtain relief,and provide them with the most conducive way to obtain compensation.The national compensation procedure itself is relatively cumbersome and time-consuming.By comparison,adopting the approach of civil tort compensation is more reasonable and in line with the fundamental purpose of protecting the rights and interests of victims.On the basis of recognizing the nature of civil liability in the wrong registration of real estate registration institutions,the principle of liability attribution can be determined as the principle of fault liability.This conclusion conforms to the legislative intent of the Civil Code to maintain social fairness and justice,the provisions of Article 222 of the Civil Code,and the review mode established by China’s registration institutions,which focuses on formal review and supplemented by substantive review.The academic dispute about the form of liability mainly focuses on what kind of liability the registration authority should bear when the registration applicant intentionally submits false materials and the registration authority fails to fulfill its reasonable review obligations,ultimately causing damage to the true obligee.This situation belongs to a special case of mixed infringement.At this time,it is more reasonable for the real estate registration authority to assume supplementary liability,which is in line with the legislative intent of the Civil Code,In line with social fairness and justice and the interests of the parties.In judicial practice,the value of real estate is relatively high,causing heavy losses to the obligee.However,real estate registration agencies are non-profit organizations,unable to bear huge compensation liabilities,so establishing a risk sharing mechanism is necessary.In the process of drawing on the experience of extraterritorial compensation mechanisms,it can be found that the compensation fund system is the choice of most countries and regions,while a small number of countries choose to apply the liability insurance system of real estate registration agencies.Each of the two systems has its own advantages.In some regions of China,there is also relatively mature experience in establishing two systems,The compensation fund system is more in line with China’s national conditions and the development trend of China’s real estate registration system.