Real estate law is a basic law, and the promulgation of property law plays a vital role in the future direction of relevant legislation in China. As a law whose main content is to adjust the ownership and utilization of real estate rights, the Property Law has a great influence on the real estate legal department. Some scholars believe that the promulgation of the Property Law will empty the private law system in the Real Estate Law and "alcoholize" the Real Estate Law into a real estate management law that specifically adjusts the vertical management relationship of real estate. It is true that many contents about real estate in the Property Law overlap with the current Real Estate Law, but this does not mean that the introduction of the Property Law hollows out the civil legal system of real estate. On the contrary, the provisions of the Property Law on real estate rights just supplement and fill the existing civil legal system of real estate, which provides a good opportunity for the perfection of China's real estate law, especially the coordination with civil legislation.
Adjusting real estate relationship with real estate law
(A) the real right law to adjust the relationship between real estate. The system of property law includes the legislative system and content system of property law, which is the relationship between form and content. The legislative system of property law is a system formed by the external manifestations of property law, which is embodied in property law. The content system of property law refers to the system formed by the internal structure of property law, which can be divided into property right norms and movable property right norms, among which property right norms constitute the core and focus of the whole property law. It is generally believed that real estate includes land, fixtures and products that have not been separated from real estate, among which fixtures mainly include houses and trees. Among the real estate rights, the most important ones are land property rights and housing property rights, that is, real estate property rights, which is the focus of the adjustment of real estate legal norms in the whole property law.
1. Land property rights. Land property rights are divided into land ownership and land other property rights. The subject of land ownership in China is specific, including state and collective, and land ownership is divided into state land ownership and collective land ownership accordingly. & lt Chapter V Property Right is the stipulation of land ownership. Other real rights of land, including construction land use right, land contractual management right, homestead use right, easement right and land mortgage right, the first four are usufructuary rights, which are stipulated in Chapters 10 to 14 of Part III of the Property Law; Land mortgage belongs to the real right of security, which is stipulated in the Property Law.
2. Housing property rights. Housing property rights can also be divided into housing ownership and other housing property rights. The forms of housing ownership mainly include: exclusive ownership, * * ownership and differentiated ownership, with differentiated ownership as the most common form of housing ownership. The standardization of housing ownership is mainly reflected in the fifth, sixth and eighth chapters of the second part of the Property Law. During the revision and deliberation of the draft property law, the content of housing property rights has been controversial. The right of residence, the right of housing mortgages and the right of assignment of real estate, which were once included in the housing property right system, were deleted for various reasons during the deliberation of the Property Law. Finally, under the system of property law, only the mortgage of the house is left, which is stipulated in Chapter 16 of Part III of the Property Law.
(B) the real estate law on the adjustment of real estate relations
Compared with the real estate law, which only adjusts the real estate property right relationship in real estate, the real estate law's adjustment of real estate relationship is not limited to the real estate property right relationship, but very substantial and comprehensive. Although there are still disputes about the nature and adjustment object of real estate law in academic circles, we believe that real estate law should be positioned as civil law. On this basis, according to the process of production, exchange, use and consumption of real estate products as the object of real estate legal relationship, real estate legal norms can be roughly divided into: real estate ownership registration norms, real estate development land norms, real estate development and construction norms, real estate transaction norms, real estate expropriation norms, real estate service norms and real estate social security norms. It should be noted that there is no unified real estate law in China, so the legislative system of real estate law still has room for further discussion. The above division is based on the content system of real estate law.
1. Real estate ownership registration standard. The registration of real estate ownership runs through the whole real estate activity, which determines the ownership, change, change mode and publicity mode of real estate property rights. The current relevant normative legal documents mainly include: urban real estate management law, land registration rules, urban housing ownership registration management measures, etc.
2. Specification for real estate development land. It mainly includes the legal norms of land use right transfer and allocation. The current relevant normative legal documents include: land management, urban real estate management law, interim regulations on assignment and transfer of urban state-owned land use rights, interim measures for the management of allocated land use rights, planning and management measures for assignment of urban state-owned land use rights, and methods for determining the lowest price for assignment of state-owned land use rights agreements.
3. Real estate development and construction norms. Including real estate development and construction subject norms and real estate development and construction behavior norms. At present, the relevant normative legal documents are: Construction Law, Regulations on Urban Real Estate Development Management, Regulations on Construction Project Quality Management, Regulations on Construction Project Survey and Design Management, Measures for the Administration of Urban Individual Housing Construction, Interim Measures for the Development and Management of Foreign-invested Pieces of Land, etc.
4. Real estate transaction norms. Including real estate transfer, lease, mortgage and other legal norms. At present, the relevant normative legal documents are: China Insurance Law, Management Measures of Lazy City Housing Lease, Management Measures of Individual Housing Loan, Management Regulations of Urban Public Housing, Management Measures of Commercial Housing Sales, Management Measures of Urban Commercial Housing Pre-sale, Management Regulations of Urban Real Estate Transfer and Management Measures of Urban Real Estate Mortgage.
5. Specification for real estate expropriation and requisition. Including collective land expropriation norms and legal norms of house demolition. At present, the relevant normative legal documents are: land management law, regulations on the implementation of land management law, regulations on the management of urban housing demolition, etc.
6. Real estate service specification. Including intermediary service norms and property service norms. Among them, the normative legal documents related to intermediary services are: Regulations on the Administration of Urban Real Estate Intermediary Services, etc. Normative legal documents related to property services include: Regulations on Property Management, Measures for the Administration of Newly Built Urban Residential Quarters, Interim Measures for the Charge of Property Management Services in Urban Residential Quarters, Trial Measures for the Qualification Management of Property Management Enterprises, etc.
7. Real estate social security norms. Including urban housing social security norms and rural real estate social security norms. At present, the relevant normative legal documents are: Regulations on the Management of Housing Provident Fund and Measures for the Management of Economically Affordable Housing Construction in Cities and Towns.
Comparison and influence of surveying and mapping on real estate legal system
Judging from the real estate relationship adjusted by the Property Law and the Real Estate Law, it is true that there is normative overlap between the Property Law and the Real Estate Law in many fields, but this overlap is not enough to make the Property Law override the civil law norms in the Real Estate Law. (1) The real estate law has a wider scope of adjustment than the property law. 1. longitudinal survey. Property law focuses on adjusting the ownership of real estate and other real rights, mainly adjusting the ownership and utilization of things, such as the ownership of real estate rights and the establishment of real estate mortgage, which is a typical static law; The adjustment of real estate law focuses on the whole real estate industry, mainly adjusting the production, circulation, transaction and consumption process of real estate as a product, such as the development and construction of real estate and the operation of intermediary institutions, which is a typical dynamic law. 2. Horizontal inspection. As the basic industry and pillar industry in China, real estate involves construction, financial trust, building materials, decoration and service industry. In addition to property rights, there are many other types of rights in the operation of this industry, such as creditor's rights, equity rights, trust rights, intellectual property rights, etc., which need to be comprehensively adjusted by the real estate law. Property law only takes property rights as the adjustment object, but can't adjust all property rights, such as real estate creditor's rights and real estate intellectual property rights.
(2) Real estate law has more adjustment means than property law. Property law is the basic law under the civil law system, and it is a typical private law to adjust the property rights relationship between equal subjects. If you only use
(3) The adjustment norms of the real estate law are more detailed than those of the property law. By combing the provisions of the Property Law on adjusting the legal relationship of real estate, we can find that even in the field of real estate, the adjustment of rights is not sufficient. For example, there are a lot of unfinished matters in the Property Law, which need to be handled in accordance with the Land Management Law and other legal provisions. For example, in the chapter of "Ownership of Construction Land", there are four provisions that need to be adjusted according to the Real Estate Law and other laws and regulations, which involve important issues such as establishing the right to use construction land by means of allocation, paying the transfer fee for land use rights, handling the non-residential construction land after its expiration, and using collectively owned land as construction land. It can be seen that the property law, as a basic law, can only outline the basic framework of real estate property right from a macro perspective, but for the legal application of specific issues, the adjustment of the property law is somewhat stretched.
On the one hand, it is difficult for the Property Law to replace the civil norms in the Real Estate Law. On the one hand, it is difficult for the universality of the Property Law to adapt to the particularity of the real estate industry in terms of legislative technology, and it is difficult to make more detailed provisions on many specific issues, such as the payment of the transfer fee for the right to use construction land, involving the determination of the transfer fee amount, payment method, time limit and legal consequences. And the property law can't cover everything, otherwise it will inevitably lead to the redundancy of provisions and the imbalance of the system; On the other hand, as far as the scope of legal meaning is concerned, the static nature of property law is also difficult to adapt to the dynamic process of real estate industry. For example, collectively owned land, as a construction land, not only involves the two major property rights relations of collective land ownership and construction land use right, but also involves land acquisition procedures, examination and approval authority, compensation and resettlement, etc. These contents are obviously beyond the scope of property law. Therefore, it is necessary for many norms in the property law to give way to the real estate law, which will make more detailed provisions on related issues.
Although there are many overlapping norms between the Property Law and the Real Estate Law, they cannot replace the civil legal norms in the Real Estate Law, let alone the civil legal system in the Real Estate Law. On the contrary, the norms of real estate rights in the property law constitute the core part of the whole civil legal system of real estate. In the field of real estate law, there is a lack of a basic legal norm to clarify the rules of ownership of rights. The promulgation of Property Law has just enriched the civil legal norms under the existing real estate legal framework, especially the legal norms of property rights, and laid a good foundation for establishing a sound real estate legal system.