Dissertation
Dissertation > Political, legal > Legal > Chinese law > China and France > Property Rights

Research on the System of Real Estate Dissenting Registration

Author NieHaiBin
Tutor WangMingSuo
School Henan University
Course Civil and Commercial Law
Keywords Dissenting registration Legislative comparison Chinese property law
CLC D923.2
Type Master's thesis
Year 2008
Downloads 231
Quotes 6
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Dissenting registration system has been introduced in Chinese property law, but the concrete provisions are not to the utmost perfect. The text takes this as an opportunity, making use of the history method、the comparison of method、the analysis method and the inductive method etc,researching the related issues of dissenting registration system matically and thoroughly,Analysising the relevant stipulated in Chinese property law, and expetcts to provide practical recommendations for China’slegislative and judicial practice.This article has four parts expect the prelude and postscript. PartⅠintroduces the creation and development of dissenting registration system, Dissenting registration originated from Prussia Law, and in the real estate registrations belongs together with advance registration to the preliminary registration. In the former period of Prussia Law, no specific difference exists between the dissenting registration and advance registration , and no definition hereto attached, which was uniformly called as dissenting registrations .In the lattor period of Prussia Law, the aforedsaid disenting registration was named as advance registration, and two types of advance registrations are stipulated. The advance registration for preserving the claim of assignment and termination of property rights developed into the current advance registration. The advance registration for preserving the property rights was similar to the current dissenting registration. The dissenting registration is formally established in the Germany Civil Code. The dissenting registration was later succeeded and developed by the Switzerland Civil Law and the Civil Law of Taiwan in China. In the process of drafting China’s "property rights" and codifing the "Civil Code", Dissenting registration system attracts basic law’s great attention firstly. During this period, domestic scholars’ attitude to introduce dissenting registration system or not is completely different. China’s Property Law clearly provides dissenting registration system finally.PartⅡreviws the value of the dissenting registration system. Under the principle of public reliance of registration, when the static trade security represented by the true right owner conflicts with the dynamic trade security represented by the third party, The law will give the priority to the trade priority at the expense of the true owner’s rights. The dissenting registration system is established by the legislator based on the consideration on the equal treatment principle among the values of law with the aim to protect the static property security and real estate property of the true owner.PartⅢelaborates the dissenting registration system from the perspective of comparative laws. In Germany law, the dissenting registration resulted from incorrectness existing in the registration book. Five situations can lead to the dissenting registration: first, the dissenting registration can be carried out according to the consent of the obligee relative to the alteration registration in the registration book ;second, to carry out according to the conservatory measures in litigation; third , according to the authortity of the registration judge; fourth, according to the entrustment of the state organs; five, according to the objection of the collateral loan registration. The dissenting registration has following three effects: first, registration can only contemptorary prevent the effect of the public reliance on registration; second, registration can prevent the bona fide possession; third, as for the subject scope of the protecting effect of the dissenting registration. The dissenting can come into force only after the interests of the oblige has been registered. The dissenting registration’s causes, conditions and legal effect are stipulated. The contemporary registration stipulated in the Switzerland law is largely consistent with the dissenting registration in the Germany law. No specific dissenting registration system exists in the current civil law in Taiwan China. Japan’s Property Law on the advance notice registration is different from the advance notice registration in the Germany law,and it is a system which corresponds to dissenting registration in the Germany law. There are two aspects of the effect of the advance notice registration in Japan’s Property Law : first, notice of effectiveness; second, the confrontation effect. The specific dissenting registration doesn’t exist in the current civil law in Taiwan China.PartⅣintroduces the author’s comment of the dissenting registration system in Chinese property law. The dissenting registration is stipulated in Chinese property law, which stipulates the dissenting registration’s causes, methods of applications,the valid period of dissenting registration and the problem of damages resulted from the invalidation or wrongness in the registration. The causes of dissenting registration are the false records in the registration book. The following triffering events are stipulated: first, the unilateral application of registration; second, registrating according to authority by the court. The effect of dissenting registration shall permit the original oblige to dispose the real estate, and when the dissenting registration is established, this disposal constitutes the suspending status of legal effect. In the aspect of invalidation of dissenting registration, the valid period of 15 days shall be stipulated clearly, procedure of dissenting registration may be established in the concrete operations. If the register suffers losses owing to untenable dissenting registration, the applicant should bear the liability of compensation as well. At the same time in course of procedure of compemsation caused by mistaken registration, we shall introduce compensation fund and insurance system so as to further protect the rights and interests of the related parties.

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