discussion on the legal nature of registration of real estate in order to change the legislative model the background property_8

1、Discussion on the legal nature of Registration of Real Estate - in order to change the legislative model, the background propertyKey words: Real Estate Registration / Property changes / legal / factual behavior Summary: Property Law prior to the adoption, the nature of the real estate registration,

2、a matter of opinion, but Tong said that the real estate registration act administrative act, the pass is from the Chinas current legislative status of the real estate decision. Property Law The issuance of, changing the past the idea that real estate agencies Real Estate Registration Registration is

3、 the traditional view of the exercise of administrative powers, clearly from the main civil service changes in the angle between the real estate property and re-understanding of the nature of real estate registration. This article as a starting point, describes the act of registration is between the

4、 parties entry into force of real property transfer element is the effect of China and France took place in civil actions, combined with property law established by the Real Property Transfer mode, and further elaborated on Chinas real estate registration behavior should be the fact that behavior po

5、int of view. Introduction Implementation of the newly promulgated The Peoples Republic of China Property Law establishes a result of legal action arising from changes in real estate property, it is necessary to register as an essential element. In other words, for legal actions arising from the esta

6、blishment of real estate property, change, eliminate, the establishment of the burden, in addition to real property as the basis for changes in behavior - behavior the establishment of claims and effective, it would need to practice real estate registration office registration procedures , real esta

7、te property the legal effect of changes in place Fang Cai. Thus, changes in real estate property registered in the Real Property Transfer plays an indispensable role. In view of our tradition and current status of real estate registration, one for real estate registration in understanding the nature

8、 and function of a certain degree of deviation occurred in the registration of the theoretical and practical level there are some differences. Discern the nature of real estate registration law, a correct understanding of the usefulness of real estate registration, to the improvement of Chinas real

9、estate registration system for immovable property registration uniform legislation, especially for the widespread practice of real estate registration, have a very important guide. A real estate registration is civil or administrative action In view of the status quo of Chinas real estate registrati

10、on, real estate, are accredited by the administration of various types of real estate specialized organs, such as changes in land property rights from land administrative departments of the registration, real estate property changes in the administrative department by the real estate registration, c

11、hanges in forest property by the forestry administration department in charge of registration. Various types of real estate by the competent organs of the executive management, registration of immovable property, if it does not apply for registration, the immovable property or real estate rights can

12、 not change. This registration status quo tends to give people a false impression of the main real estate or real estate between the right change, yet to the registration of the corresponding administrative authorities recognized by the executive act of registration was seen as an administrative act

13、, this view become the academic and practical community-tung says. 1 Some scholars even believe that the Administrative Law, the competent authority review of the act of registration is an administrative authority with the permission of the nature of behavior. 2 In the academic and practical underst

14、anding of what makes this community is determined by Chinas current legislation relating to the registration status of real estate determined. Land Management Law, Urban Real Estate Management Law are carried out from a management point of view of real estate legislation, real estate registration ha

15、ve been incorporated into the administration of natural areas. Changes in the main agreement between the property rights to make real estate the right to change, to achieve wealth and goods circulation and trading purposes. Immovable property rights in concrete terms including the construction of la

16、nd-use rights, home ownership and others are the property, property rights with the dominant and exclusive, so that any third party the right to know the situation on the property is conducive to the exercise of the rights of the real estate and real estate utility play is conducive to the smooth fl

17、ow of the property in order to establish a stable, orderly transfer of property order, the subject real estate or real estate between the rights of a change in the situation must be with a certain degree of knowledge everyone can be enough to demonstrate the means of publicity out of . Such as Franc

18、e, Germany, Japan and Chinas Taiwan region has been proven the most effective means of publicity shall be real estate registration, which would have sufficient credibility from an authoritative body movements of a real-estate rights by setting a special way to the books of the public of the show the

19、m off, everybody can query to know the ownership status of real estate on. Changes in Chinas real estate right with these countries and regions, changes in real estate the right to similarities, the same principle of operation, it will change in registration of immovable property rights as the main

20、changes between the immovable property of the publicity is to promote the use and realization of real estate property, stability orderly transfer of the necessary means. Registration of the most important feature is the status of real property rights of publicity, registration of the legal effect on

21、ly relate to the rights of ownership and changes in real estate situation in the immovable property registration services and the efficient use of the orderly flow of real estate act of registration should be place on the Civil Code Civil Code effect of behavior, it should be civil. As can be seen f

22、rom the above argument, and real estate properties of civil acts registration is determined by the function of the real estate registration decision. Property Law passed, establishing the publicity function of real estate registration is of great practical significance, real estate, real property ch

23、anges, register as a publicity tool, the main function of real estate ownership status will show the public and the public in order to facilitate the use and transfer of immovable property, any those wishing to set on the property rights of third person can come under the ownership status of publici

24、ty to make correct and effective trading decisions, but to change the idea that the real estate registration is the real estate administrative department for the exercise of administrative functions and powers of the the traditional view. Of the main changes between the right real estate to reach ag

25、reement, as long as the agreement legal, valid, and press Property Law and the relevant provisions of the law provides the necessary registration materials, and real estate registration office subsequent to the review of the qualified real property it must be registered in order to complete real est

26、ate property changes publicity procedures, but not by the administration of real estate to meet the requirements on grounds of non-registration of real property, which is in the property law has also been confirmed. Second, the fact that real estate registration is a legal act or acts of The fact th

27、at the registration of real estate property or a legal act of the property is built on the first question on the basis of argument, that is real act of registration of a civil nature to explore the premise. Belong to the same facts and legal acts, the scope of legal facts are the reasons for effects

28、 caused by China and France. However, the facts and legal acts, caused by China and France on the effects of the different mechanism of action. Legal acts, the meaning is expressed as elements, meant that incurred due to effects of certain private legal fact. 3 the main body of China and France want

29、 to take place on the effect that the emergence of civil rights and obligations, change, eliminate, subject to the wishes of the subject, as long as the wishes of the legal, effective, and will reached by China and France will be a corresponding effect on the occurrence Therefore, for legal actions

30、arising from the effects of the occurrence of civil law to implement the principle of autonomy. The fact that the act would be different, no need to take into account the fact that acts of behavior of ones inner meaning, in fact, have this behavior, that is, to produce legal effects, whether the per

31、petrator access to the meaning of such legal effect, in the do not ask. 4 Thus, the fact that the legal effects arising out of acts prescribed by law good, and has nothing to do with the behavior of ones inner meaning, without inner meaning of the perpetrator. Registration is the fact that real esta

32、te acts or legal acts, depends on the immovable property registration of the legal effect to take place - the establishment of real property, change, configuration burden, eliminate, whether the effect depends on the immovable property registration of applicants means, if the law was behavior, if ot

33、herwise, the fact that behavior. Real Estate Registration is a legal act or the fact that behavior, property changes must be considered under different legislative models. Looking at his theory and practice of national law, because legal actions that property changes are mainly two kinds of legislat

34、ive models, one formalism and the second is the meaning of Marxism. The so-called formalism refers to the change in the completion of property unless the parties jointly addressed the meaning of things, yet to register, deliver the form of the necessary legislation to do to become doctrine. 5 Accord

35、ing to the property change is based on the meaning of the parties or the property right claims a different meaning, but also will be divided into claims of formalism formalism formalism and property. Debiting require changes in property claims of the parties meant to be addressed together, and to pe

36、rform the registration, delivery procedures, such as Switzerland. Formalism required changes in property property property party meant to be co-delivered, meaning claims together is caused by changes in property right reasons, does not determine the occurrence of effects of property changes. Propert

37、y changes caused by combined effects depend on the meaning of property rights, another yet to practice the registration, delivery procedures, such as Germany. In the formalism and the legislative model, the change in terms of real estate property, real estate registration is an essential element. Me

38、aning doctrine refers to the property only changes the meaning of the parties together to have been caused by feet, not to any form of the necessary legislation to make a doctrine. 6 meaning the meaning of Marxist claims refer only to the meaning, that is, the occurrence of effects of property chang

39、es, only the party claims to have been caused by combined means sufficient, registration, delivery of the form elements are not essential elements of property changes, but the changes in order to protect the property rights of third persons, so that third party aware of the specific circumstances of

40、 the property changes, meaning doctrine provisions for the registration, delivery with effective against third parties, such as France and Japan. Real estate property registered in the different changes in the legislative mode, reveals a different function, is different legislative models from the d

41、ifferent nature of real estate registration. (A) the legislative mode formalism and real estate property registration legal action attribute Been As noted above, property rights formalism legislative mode, the property depends on changes in property rights acts, creditor actions are merely the prope

42、rty changes in the reasons for not determined the occurrence of effects of property changes. But the property behavior study what that is, whether it is a kind of property right registration act, then the divergent views. The traditional view that the meaning of that property (including property rig

43、hts desirable) behavior is itself property (individual behavior and property leases), registration or delivery of the elements of its entry into force. 7 in accordance with the general theory of legal acts, legal acts of the core elements of intention, meaning and effect of legal acts, including the

44、 meaning of expressions, such as oral form, written form, behavior. Should the meaning of the property itself is the same as the property acts, meaning that a simple property (in rem actions) can not cause the occurrence of property change in the actual results. Some kind of real property acquisitio

45、n or loss depends on the actual implementation in another act, that the delivery of movable and immovable property registration. In this way, the mere act of object right can not have the actual property changes, which in turn acts with the very concept of property rights are contradictory. In order

46、 to overcome this contradiction, the traditional views about property rights acts of meaning in the maintenance of property shall be the basis of Property Act, to carry out the actual behavior - the delivery and registration of acts of force as a property element, but this kinds of people inevitably

47、 lead to graft a sense of far-fetched. Taiwans well-known scholar Mr. Yao Ruiguang insight into the property in the Property Act shall mean the contradiction pointed out: property of actors, from the property means that the registration or delivery compared with the combination of the To-type behavi

48、or. . . The meaning of property rights, said a combination with registration or delivery, before they can conduct a so-called property rights. Only after completion of the way property behavior can occur before the property may change the effectiveness of mourning, before they can no residue on the

49、so-called question of implementation, which acts upon the establishment of property rights, meaning the effect can not be said that the meaning of property due to acts of set up, registration or delivery, but only elements of its entry into force. 8 Yao believes that property rights behavior is the

50、meaning and implementation of property rights implementation act - delivered in a combination of the registration, delivery, registration of property rights is also the content of the act, although this view is itself overcome the meaning of material property The paradox of the right to act, but on

51、the meaning and delivery of property rights, registration is still unclear the relationship between the, delivery, registration of legal property is still unclear. To explore the nature of Property Act, to clarify property rights meaning of behavior and the relationship between property rights and t

52、he delivery, registration of legal property, property rights must be the source of behavior to analyze. The creator of the theory of Property Act Confucian Savigny Germany and France in the contemporary Roman law system, a paper he wrote: private contract is the most complex and most common . . in a

53、ll legal systems could have a contract, and they are The most important form of law, first in the debt law, they are generated by the most basic source of debt. These leases are known as debt covenants. In addition, in property law in which they are also widely exist. Delivery is a real contract, be

54、cause it has all the characteristics of the concept of contract: it includes both parties right of possession and ownership transfer of the meaning of that . . only to itself, meaning that as a complete delivery is not enough, therefore, must also be coupled with actual possession of objects obtaine

55、d as its external behavior, but they can not deny that it is the essence of contract . . 9 France Confucian Savigny discussion of this fine rustic clearly tells us: to deliver their own shall be a legal act, the sale of the delivery, the core element is the meaning of the parties the transfer of own

56、ership of movable property, but it do not mean legal action, they must be attached to the delivery of the physical appearance of the above acts of property shall be delivered. As the deal size in the expansion and diversification of types of transactions, real estate transactions and transactions in

57、 the legal practice, gradually showing different transactions with the state of the delivery of movable property, he incurs the wide range of countries was established in real estate transactions is necessary to register as a Form S mode . To Savigny abstract delivery is also a real contract the sam

58、e argument starting, due to real estate registered as a normal real estate transactions, representation, such as the same reason, real estate registration was also a real contract, is an independently-fat bio - the right to change the legal acts. Savigny theory of property rights in order to conduct

59、 the legislative basis for property taken by the legislative mode of formalism, on the changes in terms of real estate property, real estate registration shall be a property independently of changes in legal acts occurred viewpoint visible today. Reposted elsewhere in the paper for free download :/ (B) claims of form