The real estate registration system is an important part of the real estate legal system, which refers to the ownership of land and buildings on the ground and the setting of other real estate matters.
A system for recording and confirming rights in special account books according to legal procedures. Real estate registration system is the foundation and core of real estate management.
It is also a necessary guarantee for the establishment of the real estate market. This paper intends to draw lessons from relevant foreign legislation and summarize the evolution and present situation of China's real estate registration legal system.
On this basis, the author puts forward some humble opinions on how to improve and perfect the system.
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There are three legislative examples of land registration (or real estate registration) system in the world today: (1) deed registration system. Also known as registration publicity
France, Italy, Belgium, Spain, most American states and some South American countries adopt the socialist or French legal model, and so does Hong Kong.
Adopt this system. The characteristic of this system is that the registration authority has no substantive authority to review the changes of real property rights that it should register, that is, it is formal.
The type of review; Registration has no credibility, and when the registered items are not established or invalid in substantive law, they can fight against bona fide third parties; Compilation of register
For example, the book is compiled according to the registration order of real estate owners rather than real estate. (2) Right registration system. Also known as the main registration requirement.
Germany, Switzerland, the Netherlands, Austria, Egypt and other countries all adopt the mode of justice or German law. This model is the opposite of the former, in which it is called reality.
Under the land ownership registration system, registration is the effective condition for the change of real property rights, and the registration authority has the authority to substantially review the change of land ownership, and the registration is open.
Trust, the compilation of the register adopts the principle of material compilation, that is, it is arranged in turn based on real estate. (3) Registration and certification system. Also known as land voucher delivery
Doctrine or Robert Torrance model, designed and put forward by Sir Torrance of Australia, was adopted on1858 65438+1October 27th.
Approved by the South Australian Parliament and implemented in July. Countries that adopt this system mainly include Australia, New Zealand, Britain, Ireland, Canada and the Philippines.
This system is also used in the Philippines, Malaysia, several states in the United States and Taiwan Province Province in China. This system adds a record on the basis of German law mode.
Provisions on land certificates and certificates containing the status of rights and their transfer to obligees. [1] Among the above three registration systems, it is the closest to China's current registration system.
This is the torrance registration system.
The real estate system in China was basically a tax system before 1949 10. Under this system, the title certificate of real estate (
Title deed) is a complete certificate of land ownership (including real estate), which can be transferred with the transfer of the certificate. The loss of land ownership certificate (regardless of any original)
Because) means the loss of property rights. Therefore, before liberation, title deeds were preserved as precious property, regardless of whether the owner was a landlord or a farmer. This is me.
It is a special phenomenon that people from all walks of life in China (including overseas Chinese) need a sense of psychological security. The tax system is very suitable for private land system and agriculture.
In a country with a dominant industrial economy, the government only levies taxes and has no more responsibilities. After the founding of New China, the Land Reform Law and other laws and regulations were promulgated.
It provides a legal basis for land ownership and land use system. In the early 1950s, only a few large and medium-sized cities carried out comprehensive real estate renewal registration.
Most towns only transfer property rights and change registration on the original political data. After a long time, the land and real estate registration system will be abandoned.
Changes in interests are often replaced by behavior.
After 1978, the legal system of real estate registration in China has been restored and developed. In terms of the real estate registration system, when the first national urban housing is completed,
After the census (1985), the former Ministry of Urban and Rural Construction and Environmental Protection issued 1986 "Notice on the Registration of Urban Real Estate Property Rights and the Issuance of Property Certificates" on February 5.
The Notice of Work requires the first registration of urban housing ownership nationwide and the issuance of a unified national grid from 1987.
Type of house ownership certificate. Subsequently, the Interim Measures for the Registration of Urban House Ownership (1April 2, 9871) and other relevant laws and regulations were issued.
Principles and Opinions on Dealing with Illegal Buildings in the Work of Housing Ownership Registration (1988 February 12) and "Registration of Property Rights of Urban Garrison Barracks"
Notice on filing and issuing certificates (June 24 1988), principles and opinions on some policy issues concerning the registration of urban housing ownership.
(1 989165438+1October1). It should be pointed out that the Interim Measures for the Administration of Urban Housing Property Rights issued by the Ministry of Construction on February 3 1, 1990 is the current situation in China.
Administrative regulations of China city real estate property right management system. In addition to reaffirming the property rights registration system, the method also clarified "urban housing property rights and
The right to use the land occupied by the house is based on the principle that the right holder is consistent. " After several years of implementation, by the end of 1993, registered real estate accounted for real estate.
90% building area, 80% certified real estate. Chapter V "Registration of Real Estate Ownership" of the Urban Real Estate Management Law, which was implemented on June 1 995+1October1.
Record management ",for the first time in the form of law to establish the national land use rights and housing ownership registration and certification system, and its main operating procedures.
Rules.
In terms of land registration system, the Land Management Law passed on June 25th, 1986 marked the real entry of land management in China.
The next historical stage. In order to determine the ownership and use right of land and carry out land registration according to law, the State Bureau of Land Management issued the Measures for Land Registration on July 5 1989.
Some Opinions on Determining Land Ownership (revised as "Several Provisions on Determining Land Ownership and Use Right" on March 1995+0 1). for
Establish a land registration system, safeguard the socialist public ownership of land, and safeguard the legitimate rights and interests of land users and land owners. 1989165438+10/8.
The State Bureau of Land Management issued the land registration rules. The rule points out that land registration is the legal right of state-owned land use right and collective land ownership.
Registration of the right to use collective construction land and other rights. Land registration includes initial land registration and change land registration. 1July 5, 994
The State Bureau of Land Management and other departments jointly issued the Notice on Printing and Distributing the Work Plan of Land Inventory and Valuation in Assets and Verification, making it clear that assets and verification will make progress.
Land inventory and valuation is not only an important way to speed up the progress of land registration and valuation, but also an important way for land management departments to serve the establishment of socialist market economy.
The direct measures of economic system are important means to strengthen land registration, valuation, market management and land asset management. In order to facilitate external service,
Standardize land registration and valuation procedures to improve work efficiency. Cadastral management institutions can hang the land registration office (station) brand for land registration and valuation.
Price is very important. In order to deepen enterprise reform, optimize the allocation of land resources and standardize the management of land use rights in the establishment of joint stock limited companies, the State Council Municipal Bureau of Land and Resources
The Reform Commission 1995 1 formulated and issued the Interim Provisions on the Management of Land Use Rights of Joint Stock Companies, which made corresponding provisions on the registration of land use rights.
It is required that land registration must be carried out before the establishment of a joint stock limited company, and then land assets can be evaluated and disposed of. According to the disposal results,
Go through the registration of change of land use right. 1 995+1October1The Guarantee Law, which came into effect, made specific provisions on the mortgage of real estate and its registration. strengthen
Rural collective land management, the implementation of the "Guarantee Law", the Bureau of Land and Resources promulgated the "Several Provisions on the Mortgage Registration of Rural Collective Land Use Rights", which depends on
Land use rights of rural collective wasteland, such as barren hills, gullies, hills and beaches, which are contracted according to law and mortgaged with the consent of the employer, are mortgaged to township (town) village enterprises.
Detailed provisions are made on mortgage registration of industrial buildings and other buildings within the scope of collective land use rights.
With regard to the legal system of real estate registration, in addition to the national norms, some local laws and regulations have also made special provisions to enable real estate registration in China.
The system is more perfect. For example, the Regulations on the Registration of Real Estate in Shenzhen Special Economic Zone (1adopted on February 26th, 1992, and implemented on July 6th, 1993), registration chapter.
Established a real estate and real estate integration system based on land registration, as well as the priority, agency and confirmation, compensation and public search of unowned property.
A series of new legal systems, such as revocation of examination and approval, reflect the objective needs of the socialist market economy and provide a legal basis for the government to master cadastre and housing registration.
Legal management has further improved the legal environment for real estate investment in the Special Zone. 1995 Shanghai promulgated the Regulations of Shanghai Municipality on the Registration of Real Estate, which
The confirmation of real estate rights is expressed in the form of registration in law, which avoids the possibility of separating the original land use right certificate from the house ownership certificate.
The contradiction between the two. 1The Regulations of Xiamen Municipality on Urban Housing Management promulgated on August 9, 1996 clearly stipulates that real estate warrants are real estate rights.
People have the land use right certificate and the house ownership certificate according to law, and the two certificates are integrated.
two
A relatively perfect real estate registration system must conform to the principles of clear property rights, simplified procedures, cost saving and clear registration credibility.
From the historical changes, current legal norms and practice of China's real estate registration system, China's real estate registration system is registered in the registration authority.
There are still some problems in the types of records, the credibility of registration and modern management methods, which need to be further solved and improved.
(a) about the real estate ownership registration authority
There are three main types of real estate ownership registration agencies in different countries: one is to set up full-time registration agencies, such as Australia.
The land ownership registration bureau in China, like the Japanese registration bureau, is specifically controlled by the Legislative Affairs Bureau (there are eight in China) and handled by local legislative affairs bureaus, branches and offices.
Registration affairs; [2] One category is filled by judicial organs, such as the local courts in the United States, and the local courts in China have undertaken real estate registration before liberation (after
Received by the Lands Bureau); (3) The first category shall be filled in by the real estate administrative department. Before the promulgation of China's Urban Real Estate Management Law, real estate
Ownership registration is managed by two organs (except Shenzhen). Obviously, the premises are managed by two departments, and this is also the end.
Problems that must be solved in perfecting China's real estate registration system. Since Shenzhen Special Economic Zone began to implement the reform of land use system from 65438 to 0987, it has learned lessons from it.
In the experience of Hong Kong, the management system of combining real estate with real estate is adopted, and it is clearly stipulated that the real estate department of Shenzhen Municipal People's Government is the real estate registration authority of the SAR.
Real estate registration is carried out in units of land. If there are buildings and attachments on the land, the land, buildings and attachments shall be registered at the same time.
[4] This regulation, which is different from other regions in registering land and houses respectively, is an objective requirement of real estate marketization and has nothing to do with the economic management system.
In fact, it is a breakthrough in China's real estate legislation. Practice has proved that the separate real estate registration system implemented in China since 1986 consists of two departments.
Each household issued a certificate, with different statistical caliber and repeated charges, and the property owners complained bitterly. The overlapping of institutions and functions of the two competent departments is not only wasteful.
Human and material resources also lead to many policies and poor government decrees, which affects the implementation of the basic national policy of saving land and the development of the real estate industry.
, affecting the image and prestige of the government. Considering the present situation of China's real estate management system, the urban real estate management law is divided into "two certificates"
The "development" mode stipulates the basic operating procedures of registration and certification, which is an expedient measure that has to be taken under the real estate management system. Fortunately, "
The Urban Real Estate Management Law not only stipulates the basic operating procedures of "issuing two certificates", but also affirms the experience of "integrating two certificates" in legal form.
Affirmed this reform achievement, pointed out the direction for rationalizing the real estate management system, and provided a legal basis for solving the unified real estate registration system. Promulgation of new law
After the deployment, many areas have defined the management system of "integration of premises and two certificates" according to the second paragraph of Article 6 of the Law. Although some local institutions
It is not unified, but simplifies the registration procedures, such as Guangdong Province, although the Provincial Construction Committee and the Provincial Bureau of Land Management are still responsible for real estate and land respectively.
However, the Regulations on the Registration of Urban Real Estate Rights in Guangdong Province clearly stipulates that the real estate management department is responsible for the registration of urban real estate.
Work. In recent years, more and more cities have implemented the integration of real estate, such as Guangzhou, Shanghai, Shantou, Kaifeng, Beijing, Xiamen and other places. It can be said that the premise of integration is
The general trend. However, due to the complex relationship between land rights and housing rights and the integration of real estate in China, a series of related problems have also arisen.
Title. For example, at present, China has not made special provisions on the registration of multi-storey and high-rise buildings. In this regard, Australia believes that
The registration system of LUN is worth learning. Torrance's registration system is based on land rights. For multi-storey houses belonging to several people, the land space is used.
The concept is its full scope, which is actually determined by the scope of the house it occupies. Japan's current Law on Differentiated Ownership of Buildings clearly stipulates that
Distinguish the exclusive parts of all buildings, and the registration of * * * used parts and the right to use the base should be integrated. China's Taiwan Province Province is basically following the Japanese example.
Real estate registration law, the current "Land Registration Rules" stipulates the first registration of building ownership, which is divided into exclusive part and * * * use part.
Register doors, underground floors and roof protrusions. Of course, because the situation in China is not exactly the same as the above countries and regions, mainly land and buildings (
(of buildings and building renovation) have different ownership and management systems. So their registration methods can only be used for reference.
(2) Types of real estate ownership registration
A complete type of real estate ownership registration should include general registration, initial registration, periodic registration, other rights registration, establishment registration and change registration.
Filing, deregistration, name change registration, deregistration, correction registration, entrustment registration, advance notice registration, supplementary registration, objection registration, temporary registration, etc.
. The type of ownership registration is determined by the purpose of registration, and all kinds of registration types should be complementary and interdependent in function and have various specific forms.
The formula has certain internal logic, and its setting should have regularity to follow, thus forming the whole registration system of real estate ownership. Proceeding from this purpose and practical needs
From the point of view, the current real estate registration rules are far from meeting the needs of market conditions and need to be revised urgently. China's "Temporary Registration of Urban Housing Ownership"
Measures "and" Interim Measures for the Administration of Urban Housing Property Registration "stipulate the types of housing property registration, including initial registration (also known as static registration) and housing.
There are two kinds of registration (also called dynamic registration) in the process of housing property right change, including new registration, transfer registration, change registration and elimination registration.
Registration of other rights and extension of registration under special circumstances (extension of registration shall not exceed one year). On the types of land registration, land registration
Rules are divided into two types: initial registration and change of land registration. The latter also includes other rights transfer registration, land mortgage registration and land cancellation registration.
Remember and correct the registration. It should be pointed out that it is difficult to obtain land ownership in a specific area by replacing general land registration with initial registration in land registration rules.
Panoramic view General registration, also known as static sign registration or renewal registration, refers to the rights that the registration authority enjoys over all the land within its administrative area within a certain period of time.
Review the registration status after the announcement. General registration is generally the first registration of land ownership. In this case, general registration and initial registration
Coincidence, but the connotation and extension of the two concepts are different after all. Although general registration is not a routine behavior, it can be a phased behavior, that is, it does not
This is a one-time job. In this case, the general registration is not the initial registration, therefore, the registration law should set up a general land registration form. General land registration
Together with the initial registration of house ownership and * *, it constitutes the general registration of real estate ownership.
It should be acknowledged that the current laws and regulations in China are still far from perfect in terms of the types of real estate registration, and some countries or regions have real estate registration laws and
Some local laws and regulations in China are worth learning and affirming. (1) advance notice registration of real estate. This type refers to the transfer or extinction in order to preserve the rights of real estate.
The right of claim, or the right to change the content or order of real estate rights, or the right of claim with conditions or time limit, the real estate registration agency is based on creditors or
The beneficiary's application and the registered name are registered with the consent of the registrant. For example, A rents the land together with the house to B, and B rents the land together after 10 years.
The newly-added buildings are returned to A free of charge, which is the case that the real estate rights will be transferred in the future and need to be registered in advance, which is called advance registration. real estate
Advance notice registration is a kind of restricted registration, and the name of restricted registration disposes of its real estate rights. After the real estate registration agency completes the registration,
, it shall notify the applicant and the registered name. (6) The lack of advance notice registration will lead to some debts that intend to obtain the real right of real estate through the act of creating rights.
The creditor's purpose failed. (2) Renaming registration. Article 45 of the Regulations on the Registration of Real Estate in Shenzhen Special Economic Zone stipulates that the name of the obligee is changed.
The obligee shall apply for registration of change within 30 days from the date of change, which is the registration of name change. The name change registration also includes the name of the real estate.
Change registration and real estate name change registration. Taiwan Province Province of China has also stipulated that "the organizer is renamed as a legal person registration", which mainly refers to the legal person during the preparatory period.
If the acquired land ownership has been registered under the name of the organizer's representative, it shall apply for renaming registration when obtaining the legal person qualification. 〔7〕(3)
For registration. This means that in some cases, it is directly registered by the registration authority without the application of the parties. For example, the Regulations on the Registration of Real Estate in Shenzhen Special Economic Zone.
Article 14 stipulates that if the land expires, the mortgage period expires, it is deposited or ruled as ownerless property by the people's court, it shall be handled by the people's court or the relevant administrative organ.
If there are seizure decisions, rulings and other circumstances stipulated by laws and regulations, registration shall be made by the registration authority, and the registration results shall be announced. (4
) Real estate lease registration. Australia's registration system does not distinguish between real rights and creditor's rights, but insists on distinguishing between movable property and immovable property.
In principle, although the real estate lease right is a creditor's right, it is still included in the scope of registration. The first article of Chapter 1 of Japan's Real Estate Registration Law also defines the right to lease.
Included in the registration. China's "Urban Real Estate Management Law" and "Urban Housing Leasing Management Measures" clearly stipulate the implementation of the registration and filing system for housing leasing, because
Therefore, the lease right should be listed as the registration right when the registration law is formulated in the future.
Because the easement and other real rights have not been recognized in the current laws of our country, there are fewer types of registration of other rights of real estate. But predictably, with the Property Law
With the formulation and promulgation of the Property Law, the scope of application of the registration of other rights of real estate will be more and more extensive, and it can also be set on real estate after the general registration of real estate ownership.
Registration of land use rights, easements, mortgages and pawning rights.
(C) on the credibility of real estate registration
Among the three legislative examples of the real estate registration system, the German law model and the torrance model both recognize the credibility of registration. The so-called credibility refers to registration
For the method of publicizing the change of real estate rights, even if the records in the register are inconsistent with the real real real estate ownership, we can trust the representation of the records.
Goodwill third parties are also protected. According to torrance's registration system, once a right is registered, it has irrevocable effect and will be affected by fraud or demarcation errors.
The victim may have the right to claim the rights of the parties and the malicious third party, but the bona fide third party who has obtained compensation cannot claim the right of recourse.
However, it is limited to those who claim compensation for damages due to fault or mistake. If the person who should be compensated dies, disappears or goes bankrupt, he may request compensation from the registration authority. 〔
8. Scholars are still divided on whether the registration of real estate is an antagonistic element or an established element of the change of real right. From the point of view of paying attention to the protection of transaction security
Considering this, we should take the latter view. Judging from the current laws and regulations on real estate in China, it also shows that it must be registered as real estate in legislation.
The constitutive requirements of the change of real right. [9] This means recognizing the credibility of registration, but the provisions are not clear enough and need to be further improved.
Oh, my god In this regard, the "Regulations on the Registration of Real Estate in Shenzhen Special Economic Zone" has noticed and made relevant provisions. Article 5 of the Regulations stipulates the following three types.
Circumstances may cancel all or part of the registered items: "(1) The parties enjoy legal rights to the real estate; (2) When a party applies for registration,
Concealing the real situation or forging relevant certificates and documents to obtain registration by deception; (3) The examination by the registration authority is lax, and the approval and registration are improper.
Yes "This is the so-called cancellation of approval and registration. At the same time, it is stipulated that the income from registration fee should be listed as the business expenditure and compensation fund of the registration authority (Article 54), such as
If the registration authority and its staff cause losses to the obligee due to improper approval and registration, the registration authority shall bear the liability for compensation, and the compensation expenses shall be paid from the compensation fund.
Support (article 59). This system is very important for maintaining the fairness and legality of registration, correcting improper behavior, strengthening the responsibility of registration authorities and protecting the public.
Legitimate rights and interests are of great significance. In order to strengthen the registration and publicity system, China should learn from the Japanese real estate registration law and formulate a unified real estate registration law.
Remember the law and uniformly stipulate all changes of real estate rights in order to protect the legitimate rights and interests of obligees and third parties and maintain the normal market economic order.
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Closely related to the registration and publicity system is the public inspection system, that is, all real estate registration items should be made public. However, China's "city"
The Interim Measures for the Registration of Urban Housing Ownership and the Interim Measures for the Registration and Management of Urban Housing Property Ownership are not clearly defined, while the Land Registration Rules stipulate that,
Access to land registration documents and materials shall be handled in accordance with the provisions of the land management department. Without permission, it shall not be provided or published to a third party (Article 39). exist
In this regard, Professor William North, a former executive vice president of the National Real Estate Association and a real estate expert, once said that the cadastral registration in the United States is open.
Documents can be viewed and browsed by anyone as long as the handling fee is paid. The purpose of publicity is to make the real estate become the transferee or buyer when it is transferred, leased or sold.
You can know everything about this land. If the cadastral registration is not open, it will be difficult to ensure the healthy operation of the real estate market. [10] Shenzhen, China
This is the first time to make innovative provisions, and the registration authority should set up a real estate register to comprehensively, truly and accurately record the real estate registration items according to the parcel number.
Load. The contents recorded in the real estate register can be queried and copied. Matters that should be announced shall be reported by the registration authority in Shenzhen Special Zone Daily or Shenzhen Business Daily.
"or Shenzhen" Chinese and foreign real estate herald "announcement (see article 9 and article 6 1 of the regulations). It should be considered that the public inspection system of real estate registration is actually
The real estate market has opened the door to resources, which should be advocated.
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