중국 물권법상 부동산 등기의 효력

Abstract

As a kind of heimisches Rechts, the real right law must conform to the different situations in different countries. During the drafting process of China's Real Right Law, the legislature had tried to draw up a statute consistent with China's national situation through analyzing real right laws in other jurisdictions and practical experience in China. Consequently, with regard to the transformation of property rights, the theory adopted in the German Civil Code was not chosen since it did not match legal mind of Chinese people, while the theory adopted in the French Civil Code also be rejected as it could not fit China's national situation. As a result, the model named “Contract + Registration”, originated in the Swiss Civil Code was adopted by China's Real Right Law with an exception applied to rural lands. According to article 16 of Real Right Law, the real estate register is the basis of the ownership and contents of real right on real estate. In addition, sub-article 1 of article 106 provides in fact the presumption of the accuracy of the contents of the real estate register, which means it would rather sacrifice the actual rights than destroy the security of transaction. This provision has been evaluated as an advanced one that is compatible with the basic principles of modern civil law. However, this provision may cause serious social problems under the circumstances that the measures ex ante or ex post protecting actual rightholders have not been set up. Further, the concept of sacrificing the actual rightholders widely accepted by other jurisdictions that had established perfect register systems can not meet legal mind of Chinese people. Therefore, since real property is the basis of human life, it should be differentiated from personal property and it is essential to consider specific characteristics of land systems, register systems and other factors while establishing register rules. Hence, at the present stage, the register system of real property transfer in China's Real Right Law is no more than a utopian that only focuses on legal theories but ignores social reality.