中国不动产登记法之现在与未来

Abstract

At present, China has formed the realty registration legal system，and the Property Law is the leading one,at the same time,there are Land Regulation Law,City Realty Regulation Law,and other laws.The rules about the realty registration are complicated and confused.In addition,the land registration system and housing registration system are coexistent.According to reports,the government of China is enacting the realty statute,and it will be published next year. The section §2.1 of the Property Law provides the realty registration typically, which including the effect of registration,duty and liability of the registration organ,categories of registration and so on.There are six aspects should be emphasized.(1)Until it is registered in accordance with law, the creation, alteration, alienation or termination of the real right of a realty shall come into effect; unless it is otherwise prescribed by any law, it shall have no effect if it is not registered in accordance with law.Further,as regards a contract entered into by the related parties concerned on the creation, alteration,alienation or termination of the real right of a realty, it shall go into effect upon the conclusion of the contract, unless it is otherwise prescribed by any law; and the validity of the contract is not affected, whether the real right has been registered or not. (2)Declaration of a uniform registration system over realties has been made.According to the Property Law,the scope, organ and measures of uniform registration shall be specified by the related laws and administrative regulations.(3)Realty registration should be started by the applicant,and the registration organ will be make an substantive examination;realty registration fees shall be charged on each piece, and may not be charged on the basis of the size, volume or certain proportion of the realty's value.(4)The realty register shall be the basis for deciding the ownership and contents of a realty;the items recorded in the realty ownership certificate shall accord with those recorded in the realty register; unless it is proved that there is anything wrong in the realty register,the one recorded therein shall prevail in the case of any inconsistence;and any right holder or interested party may file an application for consulting or copying the registration materials, and the registration organ may not reject.(5)the realty registration could be divided into three categories ,that’s general registration, original registration and preliminary registration.It needs to be mentioned that the Property Law has only three categories of preliminary registration,they are correction registration,objection registration and advance notice registration.(6)The realty registration has the effect of causing the change of real right,resistance to a third party,presumption of the accurate registration and credibility. The provisions in the Property Law are good ,but problems also exist,we should pay more attention to four issues about the realty registration law in China:no uniform realty registration system exits, lacking of important categories of realty registration, the registration rules is too abstract ,and the rural parts in China has been omitted.It should be modified, and we should set a uniform registration system over realties,and it could contains the substantive and procedure things,applying to both city and rural parts.It means that ,(1)the uniform registration system over realties should has the uniform norm,organ,effect,procedure and register.(2)the categories of realty registration should be added the registration of cancellation, trust registration,and other restrictive registration.Besides, the refinement of the rules is needed.