The basis of the judgment is the real right disposition of the obligee who enjoys the real right of real estate in the effective legal documents. Although the effect of real right did not occur because he did not declare and register according to law, his right to obtain corresponding real right protection was not affected. Case1On April 28th, 1997, Ningbo Lailai Entertainment Co., Ltd. (hereinafter referred to as Lailai Company), defendant Chen Yueqin and plaintiff China Agricultural Bank Ningbo Haishu Sub-branch (now renamed China Agricultural Bank Co., Ltd. Ningbo Haishu Sub-branch) signed a mortgage guarantee loan contract, and agreed to come to the company to borrow 500,000 yuan from China Agricultural Bank Ningbo Haishu Sub-branch. Chen Yueqin is the guarantor, and all the houses involved are mortgaged for loans. The parties notarized the loan agreement, and Ningbo Notary Office issued a notarized certificate of creditor's rights documents with enforceable effect. Due to the borrower's overdue repayment, Ningbo Haishu Sub-branch of the former Agricultural Bank of China applied to Ningbo Haishu District People's Court for compulsory execution on 1998, and the court made a civil ruling of (98) Yong Hai Zhi Zi Chu No.627 on February 5, 201. It was ruled that "the house owned by the executor Chen Yueqin, located on the second floor of Lane 42, Dongyangcao, Yonghong Village, this city, with a total construction area of 144.24 square meters, was transferred to Ningbo Haishu Sub-branch of Agricultural Bank of China", but the house involved has not gone through the transfer registration procedures so far and is still registered under the name of Chen Yueqin. On August 6th, 2007, Mao Jianping signed an auction confirmation with the auctioneer Zhejiang Tianyi Auction Co., Ltd., and Mao Jianping obtained the rights under the ruling No.627 of the Haishu District People's Court of Ningbo, with a transaction price of 500,000 yuan. Originally, he was told to the court to order the defendant to immediately return the house located in Lane 42, Dongyangcao, Yonghong Village, Jiangbei District, Ningbo City. The People's Court of Jiangbei District, Ningbo City, Zhejiang Province believes that the focus of the dispute in this case is whether the plaintiff has the right to ask the defendant to return the house involved. Article 229 of the Civil Code of People's Republic of China (PRC) stipulates that the establishment, alteration, transfer or extinction of property rights due to the legal documents of the people's court or the arbitration commission or the expropriation decision of the people's government shall take effect when the legal documents or the expropriation decision of the people's government takes effect. As an exception to the principle of effectiveness of real right publicity, this article establishes that the change of real right based on effective legal documents does not take registration and delivery as the effective elements, and the legal documents become effective as soon as they become effective. The former Agricultural Bank of China Ningbo Haishu Sub-branch applied to Ningbo Haishu District People's Court for compulsory execution with the notarial certificate of creditor's rights documents issued by the notary office, and the court ruled that the defendant Chen Yueqin transferred the house involved to the former Agricultural Bank of China Ningbo Haishu Sub-branch. Therefore, the former Agricultural Bank of China Ningbo Haishu Sub-branch has obtained the ownership of the house involved based on the effective legal documents, and since the former Agricultural Bank of China Ningbo Haishu Sub-branch was changed into the plaintiff, the rights and obligations shall be enjoyed and borne by the plaintiff. Although Mao Jianping, an outsider in the case, obtained his rights under (98) Yong Hai Zhi Zi Chu No.627 civil ruling through auction, he has not gone through the transfer registration procedures of the houses involved so far. Therefore, although the plaintiff who enjoys the real estate right based on the effective legal documents does not have the real estate right effect because he has not declared and registered according to law, the plaintiff's right to obtain the corresponding real estate right protection is not affected. The defendant was told to return the house involved in the case, which was in compliance with the law and was supported by our court. 20 16 first-instance judgment: the defendant Chen yueqin vacated the house involved and returned it to the plaintiff China agricultural bank co., ltd. Ningbo haishu sub-branch within 15 days from the effective date of this judgment. After the verdict was pronounced in the first instance, the defendant Chen Yueqin refused to accept the appeal. The Ningbo Intermediate People's Court held that the confirmation of the transfer of the house involved in the case to Ningbo Haishu Sub-branch, the predecessor of China Agricultural Bank Haishu Sub-branch, was based on the ruling, and registration and delivery were not effective elements, so that the ruling took effect and the property right change took effect. Before the civil ruling is revoked without legal procedures, the ownership of the house involved should be determined according to the civil ruling, and it is not improper to determine that the house involved should belong to Haishu Sub-branch of Agricultural Bank of China in the original trial. As the owner of the house involved, Haishu Sub-branch of Agricultural Bank of China asked Chen Yueqin to vacate the house, which is justified and should be supported. The appellant Chen Yueqin's appeal cannot be established, and our court does not support it. On July 28th, 20 16, the judgment of second instance: the appeal was dismissed and the original judgment was upheld. Comment 1. According to the provisions of Article 229 of the Civil Code, as an exception to the principle of publicity effect of real right, the change of real right based on effective legal documents does not take registration and delivery as the effective elements, and once the legal documents become effective, the real right effect occurs. Because the effective time of different legal documents is different, the specific time of real right change caused by them is of course different. According to the provisions of the Civil Procedure Law, if the first-instance judgment made by the local people's courts at all levels and permitted by law fails to appeal within the appeal period, the judgment shall become legally effective upon the expiration of the appeal period, that is, the time when the judgment causes the change of property rights shall be the date of the expiration of the appeal period. However, Article 461 of the Supreme People's Court's Interpretation on the Application of the Civil Procedure Law of People's Republic of China (PRC) stipulates that if the judgment or ruling that can be appealed cannot be served on both parties at the same time, the appeal period shall be counted from the date of receiving the judgment or ruling respectively. Therefore, in this case, the time when the change of real right takes effect should be the date when the appeal period expires. The first-instance judgment made by the Supreme People's Court, the second-instance judgment made by the people's court at or above the intermediate level and the first-instance judgment made by the local people's courts at all levels that are not allowed to appeal shall take effect immediately after being served. Therefore, the time when such judgments cause changes in property rights should naturally be the date when the documents are served. 2. Judicial protection of real estate rights based on effective legal documents According to the provisions of Article 232 of the Civil Code, if you enjoy real estate rights based on effective judgments, you need to register according to law when disposing of this property right. Without registration, the effect of real right will not occur. In this case, although Mao Jianping, an outsider, obtained the rights under the civil ruling (No.627 (98)) of Ningbo Haishu District People's Court through auction, he has not gone through the transfer registration procedures of the house involved. Therefore, the plaintiff's right to dispose of real estate based on effective legal documents has not been effective because it has not been declared and registered according to law, but the plaintiff's right to obtain corresponding real estate protection is not affected. To sum up, as the obligee who enjoys the real right of immovable property based on effective legal documents, the people's court should support him in seeking judicial relief when his rights are infringed.
Legal objectivity:
Article 229 of the Civil Code, if the establishment, alteration, transfer or extinction of the real right is caused by the legal documents of the people's court or arbitration institution or the expropriation decision of the people's government, it will take effect when the legal documents or expropriation decision take effect.