In the case of frequent modern real right transactions, the change of real right not only involves the inflow of a country's property, but also relates to the transaction order of a country, so publicity is very important. This paper analyzes the system of property right publicity, looks at the value of property right publicity from many angles, and discusses it in combination with the provisions of People's Republic of China (PRC) Property Law.
Keywords: value principle and method of real right publicity system
The principle of property right publicity is one of the basic principles of property law. Publicity of real right refers to the external performance that the enjoyment and change of real right can win the public trust. The object of publicity is the fact that the real right enjoys and changes, and the purpose of publicity is to let an unspecified third party know. Accordingly, in the publicity system, the parties and the third party can directly know the existence and changing state of real right from the outside, thus making the legal relationship of real right transparent; Otherwise, it will be harmful to transaction safety, transaction order and the interests of the third party.
First, the content of the real right publicity system
Article 23 of China's property law passed in 2007 stipulates the publicity method of movable property rights; Article 9 of the Property Law, Provisional Regulations on Assignment and Transfer of Land Use Rights, Urban Real Estate Management Law, Regulations on Management of Urban Private Houses, Land Registration Rules, etc. , which stipulates the publicity method of land and housing property rights changes in China-registration. Now China has established a relatively perfect property rights publicity system [1].
(A) the method of real right publicity
According to the property law of modern countries, the way of property right publicity varies with the difference of real property right or movable property right. Real estate property rights take registration and change registration as the publicity methods of rights enjoyment and change, movable property rights take possession as the publicity methods of rights enjoyment, and possession transfer and delivery as the publicity methods of rights change. By giving credibility to registration, change of registration and delivery of possession, the public can also learn about the enjoyment and change of property rights through registration, change of registration and delivery of possession [2], so as to achieve the purpose of publicizing the enjoyment and change of property rights.
1. Publicity of movable property rights
One of the publicity methods of chattel property right is possession as a static right expression, which is the de facto management and control of things. Possession can be divided into direct possession and indirect possession, but either kind of possession is the external expression means of chattel property right, and the factual state of possession is "presumed" to be the right possession and obtained legal protection; The second publicity method of chattel property right is delivery, that is, delivery of chattel possession and delivery of chattel actual control. For example, in the case of creating property rights and transferring property rights, delivery plays a role in indicating the effective acquisition of rights.
Possession and publicity can not cover the existence and change of all movable property rights, leaving a blank of publicity, which leads to GAI publicity. At the same time, the ownership of movable property, limited real right of movable property, partial real right and partial creditor's right are all publicized through possession. Possession and these rights can not form a one-to-one correspondence, which easily leads to confusion between different types of movable property rights, as well as confusion between movable property rights and other rights, and it is difficult to accurately publicize rights. From this point of view, possession and publicity, as the publicity methods of movable property rights, have considerable limitations, which will be described in detail in the next interview.
First, the establishment and existence of some chattel mortgages are not publicized. Chattel mortgage refers to the mortgagee's right to change the price of mortgaged chattel and get priority compensation when the debtor fails to perform his debts. According to the provisions of the Guarantee Law, some chattel mortgages do not need to be registered, that is to say, it takes the legislation of expression of will as the effective element. As long as the parties reach an agreement on expression of will and conclude a chattel mortgage contract, chattel mortgage can be established without additional delivery and other publicity methods. During the existence of this chattel mortgage, the mortgaged property will continue to be possessed by the mortgagor and others, but the mortgagee does not possess it, so it is impossible to publicize the existence of his mortgage by possession. Obviously, this kind of chattel mortgage lacks a "right coat" and there is no publicity method.
Second, in the concept delivery, there is no public way to change the real right of movable property. Conceptual delivery is relative to actual delivery, including simple delivery, possession change and instruction delivery. Among these three ways, there is only the transfer of things, not the transfer of direct possession, that is, there is no realistic delivery. Conceptual delivery, as a fictitious delivery, depends on the expression of the parties' will, and there is no public expression, which is not enough for the public to know, which obviously does not conform to the essence of publicity. According to the laws and general theories of various countries, delivery, as a publicity method of movable property rights, is a transfer of direct possession of movable property, and conceptual delivery cannot be a publicity method of movable property rights.
Third, possession often does not publicize the specific types of movable property rights. Of course, the ownership of movable property is publicized through possession. Chattel pledge, chattel lien and chattel usufructuary right are also publicized through possession. If these other owners possess chattels with ulterior motives and sell them to bona fide third parties, then the owners of chattels will definitely lose their ownership, because bona fide third parties can judge from the way of publicity, trust other owners as owners, and their interests should be protected by credibility. From this point of view, possession publicity is a property right in the chattel property right group, rather than determining a specific property right that has no choice from the beginning. This kind of propaganda is quite accidental and vague, and it is not propaganda to some extent.
Fourth, some non-real rights can also be embodied by possession and delivery. In some contractual relationships, such as leasing, storage, transportation, and processing contracting, the lessor, depositor, shipper, and principal shall deliver the movable property, and the lessee, carrier, custodian, and contractor shall possess the movable property. These external manifestations are consistent with the way of publicity of movable property rights. On these occasions, if the possessor of movable property claims to be the owner of the goods and sells them to a bona fide third party, the interests of the third party will be protected by credibility because of their trust in publicity. From this point of view, possession and delivery, as an objective fact, are universal, and are not the unique external manifestations of the existence and change of movable property rights. Using such a universal fact to publicize the special real right of movable property is like saying that everything that can shine is a lamp, which confuses the difference between things, so what about publicity!
2. Publicity of real estate rights
Real estate registration is the process or fact of recording the legal facts of the change of real estate rights in the real estate register specially established by the state. Its purpose is to clarify the ownership of all kinds of real estate, so as to protect the legitimate rights and interests of real estate owners.
At present, the publicity of real estate rights in China adopts the way of substantive registration, that is, registration plays an important role in determining whether the establishment, transfer, change and elimination of real estate rights can take effect. All changes of real estate rights must be registered, and those that are not registered will not take effect. Under the necessary conditions, according to the established real property right system, the following legal effects can be obtained:
(1) The validity of determining whether the change of real property rights caused by legal acts can take effect; (2) the validity of the certainty presumption of rights, that is, the validity of taking the registered real property right as the correct real property right and protecting it according to law; (3) The effect of bona fide protection, that is, the third party who trusts the rights recorded in the real estate register to obtain rights, is legally recognized and protected, and the original obligee is prohibited from being investigated; (4) Risk warning effect, that is, all kinds of changes in real rights are included in the registration, and the exclusive effect of all kinds of real rights is clearly declared through the records of the real estate registration book, so as to achieve the effect of warning the real estate transaction risk of the relative person of real rights. In fact, due to the lack of a unified legal basis, a unified registration authority, a unified registration effect, a unified registration procedure and a unified ownership certificate, the effectiveness of the system has not yet reached its due level. As the legal basis and registration effectiveness have been discussed in the last part, the registration procedure can be incorporated into the legal basis, and the unification of ownership certificates is also the proper meaning after the unification of legal basis. The author will focus on demonstrating the influence of the lack of unified registration on the effectiveness of the existing system.
In our country, according to the law, the administrative organs that have the right to implement the method and system of real estate publicity include land management organs, real estate management organs, mineral management organs, water management organs, fishery management organs, forestry management organs and so on. , respectively, on land, housing, mineral resources, water resources, fishery resources, forest resources and other real estate publicity to exercise management rights. The disunity of registration organs and the incompleteness and untimely publicity of registration will eventually harm the social and economic development and the legitimate rights and interests of obligees, especially when the functions and powers of two or more organs overlap or overlap, usually driven by material interests, they will actively fight for power and seize the beach, leading to unnecessary consumption of human, material and financial resources by civil subjects, and may cause chaos in social order and even provide a hotbed for administrative corruption. Let alone give full play to the positive role of the method and system of real estate property right publicity, let alone coordinate the legitimate interests of society, state, collective, third party and right subject.
The public registration of real estate rights in China should belong to a unified administrative organ. Because the state power is not a day's work in the social arena, China's legislative power is greatly influenced by various political factors when distributing the interests of all stakeholders, so that when the law is cornered, it has no choice but to choose China's ancient "golden mean"-but to maintain the status quo of "benefit sharing". The author believes that it is imperative to unify the registration authority of real estate rights publicity, but it is difficult for the court to undertake this task. China's "Procedural Law" stipulates that the courts independently exercise judicial power, requiring the courts to independently exercise judicial power over cases under their jurisdiction regardless of trial level and region, and no other individual or group may interfere. The independence of the courts, the neutrality and negativity of the judiciary, and the interest of the registration responsibility are also easy to breed the power between the courts. The relationship between the superior and the subordinate leadership of a unified administrative organ just avoids this defect. We say that the registration of real estate rights belongs to the unified organ horizontally and to the administrative organ vertically. They explain from different angles that we should allocate the rights and responsibilities of real estate registration based on public welfare goals rather than others.
(B) the effectiveness of property rights publicity
At present, all countries in the world put the system of property right publicity in an important position in legislation, but there are differences on the effectiveness of property right publicity. To sum up, there are three kinds:
First, the principle of publicity elements, that is, the law not only gives credibility to the method of property right publicity, but also publicity is an effective element of property right change. That is to say, there is only an agreement between the parties without the publicity of the change of real right, so the expression of the meaning of the change of real right is not only unreliable, but also does not produce the effect of the change of real right, that is, the change of real right is invalid. This way is mainly represented by Germany; The second is publicity confrontation, that is, the law only gives credibility to the method of property right publicity, and publicity is not an effective element of property right change, but only produces the effect against the third party, that is, the legal effect of property right change occurs when the parties reach an agreement on property right change. Just before publicity, it does not produce social credibility, can not confront a bona fide third party, and only produces legal effect between the parties. France and Japan are representatives who adopt this theory; Third, eclecticism is a legislative example, which adopts both open elements and open confrontation, but each has its own emphasis. [5] As far as China is concerned, from the general principles of civil law, urban housing management law, security law, maritime law and other provisions. China adopts eclecticism, that is, the principle of open elements, except open confrontation. In China's current system, the change of real property rights completely adopts the registration requirement, and the establishment of mortgage rights also takes registration as the effective requirement, while maritime law.
Second, the value of the principle of real right publicity.
(A) make full use of value
One of the ways to make the best use of things is to set as many types of real rights as possible on the same thing, so that multiple real rights can coexist on the same thing without violating the principle of one thing and one right. Because there are multiple real rights in the same thing, it is inevitable that there will be conflicts in effectiveness when realizing real rights, which makes some real rights difficult to realize. Therefore, the following two problems must be solved: first, the established property right on the property must be publicized in a certain way, so that those who want to re-establish the property right on the property can clearly understand the state of the existing property right on the property, so as to judge the realization risk of the property right to be established according to their own wishes and decide whether to re-establish the property right on the property; Secondly, the person who sets the real right needs a standard when judging the risk of realizing the real right in the later stage. This standard must be legal, specifically the priority effect of the real right, and one of the bases for determining the priority effect of the real right is the principle of publicity of the real right. The Property Law clearly stipulates the priority effect of some property rights. Due to the limitation of real right legislation, it is impossible to exhaust it, so we must seek the principle of real right publicity as one of the foundations of priority effect to solve it. [3]
(B) the ethical value of subjectivity
The dynamic security of the change of real right has the special function of promoting and guaranteeing the freedom of contract and ownership. Without the protection of this dynamic security, people will fall into a state of non-freedom. Because freedom of contract has a cost, especially information cost, the failure to guarantee dynamic security means that the transaction cost will increase sharply, and as a result, the substantive freedom of transaction and contract will be abandoned. The freedom of ownership is actually the freedom after the right is obtained, and the process of obtaining the right as its premise directly determines the possibility of enjoying this freedom. If there is no dynamic security protection, the parties will give up the transaction because the freedom of contract is blocked, and their dream of owning something will also fail, and the freedom of ownership will become an empty slogan to a certain extent. By protecting the trust of the third party in the transaction, the principle of real right publicity enables the trader to make a transaction decision beyond the information cost limit, and makes the subject ethics of private law autonomy fully practiced and publicized.
(3) Evidence value
One of the important functions of the principle of property right publicity is the correct presumption of its rights, that is, the property right contained in the publicity is presumed to be the correct right. For example, the registered real estate obligee is the obligee and the movable property obligee is the obligee. The presumption of the right correctness of the principle of real right publicity is a kind of legal presumption, that is, "the law infers the result of unknown facts according to known facts." [4] The essence of legal presumption is still legal hypothesis. Although this kind of "presumption" itself shows its probability and absolute reliability to some extent, it has the function of exempting the party who advocates presumption from the burden of proof and shifting the burden of proof that presumption does not exist to the other party. But it can achieve the purpose of litigation economy, fair distribution of burden of proof, alleviating some difficulties in proving facts and implementing substantive law norms. At the same time, this assumption is by no means arbitrary, but a logical identification based on daily life experience. It is the positive role of legal presumption and the basis of life experience that determines that it can be recognized and accommodated by law and recognized and accepted by the people. The principle of publicity of property rights infers the correctness of rights from possession (movable property) and registration (immovable property), and allocates the burden of proof in the substantive law of property rights. The principle of publicity of real right distributes the burden of proof through the presumption of the correctness of rights, and plays a protective role in the disputes or litigation between the parties.
Three. On the provisions of the Property Law on the publicity of property rights
Paragraph 1 of Article 9 of People's Republic of China (PRC) Property Law stipulates: "The establishment, alteration, transfer and extinction of the real right of immovable property shall take effect after being registered according to law; Without registration, it will not take effect, except as otherwise provided by law. " Article 14 stipulates: "The establishment, alteration, transfer and extinction of the real right of real estate shall take effect when it is recorded in the real estate register." Article 23 stipulates: "The establishment and transfer of the real right of movable property shall take effect upon delivery, except as otherwise provided by law." Article 24 stipulates: "The establishment, alteration, transfer and extinction of real rights such as ships, aircraft and motor vehicles shall not be opposed to bona fide third parties without registration."
It can be seen that the property law establishes that the way of publicity of movable property rights is delivery and the way of publicity of immovable property rights is registration. As can be seen from Article 9 of the Property Law, real estate adopts the principle of registration requirements. Because the change of real estate has a great influence on the interests of the parties and has the most problems. Therefore, this paper focuses on the analysis of the publicity method of real estate registration.
Article 22 of the Property Law stipulates that "the real estate registration fee shall be charged by piece, and shall not be charged in proportion to the area, volume or price of the real estate. The specific charging standard shall be stipulated by the relevant departments of the State Council in conjunction with the competent price department. " Judging from the current charging situation of real estate registration in China, the relevant fees paid by the parties when handling the registration of house ownership transfer, land use right registration and mortgage registration are not low because of the high value of the subject matter. In order to prevent the registration agency from charging fees, the competent department has issued a document requesting that registration should be charged by piece, not by the value of the subject matter; [5] Article 22 of the Property Law reaffirms this principle. The author thinks that it may be reasonable to charge according to the value as long as the proper proportion is mastered. First, the registration authority invests different resources in examining and verifying the transaction documents because of the complexity of the transaction. Registration is first to meet the needs of the parties to make their rights antagonistic and exclusive. In the case that some registration fees are low and some registration fees are high, the latter naturally cannot ask the former or even the state to share them; Second, according to the second paragraph of Article 2 1 of the Property Law, the registration authority shall bear the responsibility for the damage caused to others by its fault, including both parties and the third person who trusts the registration. Although article 19 of the Property Law stipulates the system of correction registration and objection registration to mobilize interested parties to ensure the correctness of registration, it still cannot guarantee the complete correctness of registration. The greater the value of the property registered by the registration authority, the greater its potential responsibility, so what is the responsibility? The transaction cost caused by the registration fee may affect the willingness of the parties to choose registration. If not registering can still meet the needs of the parties, forcing them to register is not in line with the principle of efficiency. What kind of property does not need to be registered should be determined according to trading practices. Theoretically speaking, the property with small circulation scope does not necessarily need to be registered. Examples in this regard are: First, Article 24 of the Property Law reconfirms the cars, boats and planes that have been used in the original legal practice; Second, in rural communities with low mobility of people and property, it is very clear who owns the house and land or who contracts it, and it is not even necessary to register. Compulsory registration will increase the burden on farmers. However, once the rural homestead and land contractual management right enter the circulation, the registration requirements may be highlighted. This is the rule that "those who are not publicized shall not fight". Compared with the decisive power of publicity, the effect of this rule is confrontation. Theoretically speaking, the publicity confrontation mode may encourage "one thing sells several things" and reduce the security of real right transaction, because any transferee can't rule out that the dishonest transferor will transfer the property to others before completing the publicity formalities, and then he will only have money and goods. However, this model still provides the possibility of publicity for the parties, and the parties can choose whether to register according to their own measurement of transaction security and transaction cost within the independent space reserved by this model. This is an effective legal policy choice. Moreover, with the development of publicity technology, it will be more and more convenient to publicize and inquire about the rights of things through the publicity system, which will naturally attract more parties to choose publicity. It is worth noting that Article 24 of the Property Law clearly stipulates the rules of publicity confrontation, which are only applicable to ships, aircraft and motor vehicles, and the scope is very narrow. At the same time, according to China's administrative and judicial practice, the original intention of this paper may be to focus on the future, but in fact it is difficult to accommodate the imagination of expanding interpretation.
Let's take a look at article 158 of the Property Law. Article 158 stipulates: "The easement shall be established when the easement contract comes into effect. If a party requests registration, it may apply to the registration authority for easement registration; Without registration, you may not be able to fight against bona fide third parties. " It can be seen that the property law adopts the registration confrontation system. The main reason for this provision is that easement is a usufructuary right set outside the adjacent relationship to use other people's real estate and improve their real estate power. Easement mainly occurs between two obligees and generally does not involve a third person. When the third party infringes on land rights, it mainly infringes on land use rights, and does not involve the infringement of easement. Even if it is not registered, it does not affect the ownership of the parties. In particular, the easement itself cannot be transferred separately, but must be transferred together with the land contractual management right or the construction land use right. It is attached to the serviced land and the ownership or use right of the serviced land. The author believes that although this practice has some truth, it is more in line with jurisprudence to adopt the principle of registration requirements. When the parties reach an agreement on the use of the common real estate without registration, in fact, a creditor-debtor relationship with Party B's inaction or tolerance obligation as the main body arises. Essentially, it is a debt relationship, which only takes effect between the parties; Its content is also something that pays rather than dominates others. This is obviously different from the easement as a usufructuary right. If we adopt the way of registration confrontation, it will obviously confuse the relationship between the debt of inaction and the easement. Therefore, it seems more reasonable to adopt the principle of registration elements.
References:
Liang Huixing. Chen Huabin. Property law [M] Beijing: Law Press, 2009, 89 pages.
[2] Li. Civil Law (Special Lecture), p. 367.
[3] Hong: "Making the Best Use of Property Rights Publicity", People's Court Newspaper, 2005/05/30.
[4] Li Hao: A Study on the Burden of Proof in Civil Law Press, 2003, p. 199.
[5] Chang Peng-ao, "The Decisive Force of Property Right Publicity", People's Court Newspaper, 2005/05/30.