Research on the publicity of registration

Author: Ma Xusheng
Publisher:
Publish Date: 2006-08-01
Features: The publicity of registration, as an ancient institutional presence in property law, has a history of hundreds of years and has been recognized by many countries in the world. In terms of its existence and scope of application, the publicity of registration is deeply influenced by the social conditions, legal structures, and legislative values of various countries. From a factual perspective, the publicity of registration reflects the vertical and horizontal social existence and is a product of the abstraction and generalization of specific situations through the long-term evolution of legislation and case law. In terms of institutional design, the operational resources of real estate registration come from state funding, giving it a significant public welfare image. For the registration system, the bestowal of publicity is the foundation for maintaining the existence and healthy development of the order of real estate. There are multiple standards for measuring trustworthiness. The source of public trust in real estate registration does not entirely depend on the competence of the institution but also includes the existence and operation of the internal mechanism of publicity and external factors such as transparency and openness. This article will use the topic of the publicity of registration to answer the following questions: (1) Explain the connection between the publicity of real estate registration and social development, the accumulation of social capital, and the consolidation of the system; (2) How can publicity be operationalized; (3) Examine the publicity of real estate registration in China. The author expects that the research results of this book will provide an empirical basis for the theory of the publicity of registration and also provide options for the institutionalization of the publicity of registration in China in the future. The full text consists of six chapters and a conclusion, divided into seven parts:
Chapter 1 Deconstructs the basic categories of the publicity of registration, mainly elaborating on the connotation, typology, theoretical foundation, and value theory of the publicity of registration. It narrates the publicity of registration against the backdrop of historical formation, clarifying the background and trends of the emergence of the system, and on this basis, clarifying the concept and connotation of the publicity of registration, and eliminating the misunderstanding that the prescriptive force of registration is considered "publicity." Based on the concept, it further seeks the theoretical support behind the system. This chapter takes the mechanical appearance and the consolidation of trust as the starting point, delving deep into appearance theory and the theory of state publicity, aiming to provide a more solid foundation for the publicity of registration at the institutional level. In the typological study, it clearly points out that the publicity of registration has two types: "statutory publicity" explicitly stipulated in legislation and "analogous publicity" established through case law. The value theory explores the fundamental "usefulness" of the system. The root of the "perfection" and "welfare" of the publicity of registration mainly lies in the two dimensions of security value and efficiency value: under the recognition of the publicity of property rights, the parties to the transaction can fully rely on registration for reasonable anticipation and expectations, and their expected interests in the transaction will not be lost due to unforeseen factors, which is very beneficial to social security and also helps to save transaction costs, reduce transaction costs, and improve economic efficiency.
Chapter 2 Deals with the system positioning of the publicity of registration, which is essentially using the weapon of speculation to depict the real picture of the publicity of registration in the logical world. This abstract "tentacle" extends to three fields: The primary discussion is the integration of the publicity of registration and the mode of change of real property rights at the macro level. Most jurisdictions that adopt the requirement of registration in the world grant publicity to registration, while in jurisdictions like France and Japan that adopt the oppositionist mode, publicity is absent. Whether the publicity of registration can be integrated into the oppositionist mode cannot be determined solely by empirical observation. Publicity and the change of property rights are two issues at different levels and cannot be directly equated. The more accurate description of the relationship between publicity and the oppositionist mode is that the oppositionist mode does not inherently exclude publicity, as long as the institutional guarantees are in place, the two can safely be combined. From the perspective of the conceptual system, real property can be acquired in good faith. In terms of the effect of acquiring property rights, the rights acquired by the third party based on the publicity of registration are essentially the acquisition of real property rights in good faith, and the acquisition of real property rights in good faith is merely a description of the legal effects of the publicity of registration. However, the publicity of registration is broader in connotation and extension than the acquisition of real property rights in good faith, and the effect of the publicity of registration in protecting the loss of rights is not covered by the acquisition of real property rights in good faith. Therefore, the publicity of registration and the acquisition of real property rights in good faith should be distinguished and used independently. As for the publicity of registration and the non-causal nature of property rights acts, by carefully examining the mechanisms of both, it points out their similarities in protecting transaction security while also pointing out their differences in security levels. In the field of real property rights, although the publicity of registration has some functions of the non-causal nature of property rights acts, it has not yet achieved the effect of "emptying out" the non-causal nature of property rights acts. If China does not adopt the theory of the non-causal nature of property rights acts, it needs to "strengthen" the space lacking the "non-causal nature of property rights acts" and combine it with the publicity of registration to comprehensively achieve the protection of real estate transaction security.
Chapter 3 Analyses the reliability of the basis of the publicity of registration—registration truth review. The implementation of the publicity of registration inherently imposes high requirements on the "accuracy" of registration, and any negligence can be described as "a small error leads to a big difference." In modern society, whether or not publicity is granted to registration, when parties submit registration requests and the registration authority conducts reviews, it can be said to be the basic operational form of registration in various countries. To achieve the ideal state where registration truly reflects the truth, reducing the gap between the "real image" and the "virtual image" of rights to the minimum, various countries have made diverse arrangements for the system from the perspectives of substantive law and procedural law. After examining the successful practices of real truth review in various countries, it clearly points out that it is extremely important to construct a mechanism for sharing the registration review functions of the registration authority to achieve both safety and efficiency. From the perspective of foreign law, notaries play an important role, in addition to which, Japan's "" and Taiwan's "" have skillfully balanced and coordinated the speed, simplicity, and truthfulness of the registration process. From the perspective of being consistent with the publicity of registration, substantive review is inevitable, and the truthfulness of registration must be ensured with high quality. However, a field investigation of the operation of truth review in various parts of China and the organization of its reserves cannot draw the same conclusion as that of foreign countries. Currently, China's supply of human resources, financial resources, and material resources is relatively insufficient, and it cannot blindly demand the truthfulness of registration. Legislation should adopt a relative review principle to balance the truthfulness and efficiency of registration. For parts of the truth review that are difficult to complete, they can be solved by strengthening the compensation mechanism of the publicity of registration.
Chapter 4 Examines the basis of the occurrence of the publicity of registration—the registration register. To grasp the publicity of registration, attention should not only be paid to the "material carrier" of publicity—the registration register but also to the construction of the publicity of registration as a dynamic process, considered within a comprehensive value game. Therefore, this chapter starts from the medium in which the publicity of registration occurs—the registration register, discussing the respective advantages and disadvantages of the two types of registration register compilation: "object compilation" and "person compilation," and making a comparative legal study of the content of the registration register, analyzing its similarities and differences and the aspects that can be for China; for the characteristics of the registration register, it clearly points out its officiality, openness, and durability. Then, moving from static to dynamic, it directly enters the process of entering the registration register; in the registration process, from excellent procedures and their design concepts, it revolves around the series of links in the operation of the procedure, taking the beginning of the registration process as the starting point, and focusing on the registration application, which can carry the entire value reserves of the registration process, layer by layer, around the registration application relations, application methods, application content, submitted documents and their forms, application substitution, application effects, and registration request rights. Then, it moves on to registration review, the "balancer" that accelerates or slows down the registration process, gradually analyzing the receipt, payment, and even registration, issuance of certificates, and announcement, taking the essence, and providing a comprehensive, multi-faceted, and three-dimensional understanding, with the carrier research and procedural design in the entire chapter all centered around the publicity of registration.
Chapter 5 Searches for the technical specifications of the publicity of registration, divided into two parts: applicable conditions and legal effects. Based on different understandings of the publicity of registration, the current provisions of various countries on its applicable conditions are not consistent. This chapter takes the general conditions as the focus of normative analysis, conducting an in-depth study of items such as preliminary registration, registration errors, protected property rights changes, the good faith of third parties, transactions between third parties and the registered owner, the completion of registration acts, and circumstances that do not undermine publicity, evaluating their pros and cons. In addition, the differences in the provisions of various countries and representative opinions in jurisprudence, such as whether the fault of the right holder is included in the applicable conditions, are also included in the rational evaluation; the legal effects of the publicity of registration are closely around "giving to one and taking from another." In terms of form, there are two types: property rights effects and creditor effects. The property rights effect of the publicity of registration generally grants third parties corresponding real property rights. As for its nature, there is a debate between original acquisition and, but in essence, it still belongs to "acquisition from a person without rights." The acquisition of property rights by third parties has a legal basis, and they generally do not have a debt relationship with the true right holder. The true right holder should claim compensation from the registered owner based on breach of contract, unjust enrichment, or tort, or request compensation from the registration authority.
Chapter 6 Examines the institutional guarantees of the publicity of registration. To what extent the publicity of registration reaches can be considered acceptable or can be considered "publicity," the existence of correction mechanisms and compensation mechanisms is an important indicator. Publicity is a phenomenon category that needs to be continuously maintained, and the motivation mainly comes from self-reflection and presentation within the system. To some extent, it is precisely the reasonable design of relevant legal systems that lays the foundation for the legitimacy of the existence of publicity of registration, and for this reason, objection registration, correction registration, and compensation mechanisms are the focus of discussion. The section on objection registration mainly discusses the legal provisions of objection registration in various countries, the relationship between objection registration and related categories, the initiation and termination of objection registration, and the issues that China needs to pay attention to when establishing objection registration in the text; the section on correction registration starts from the connotation of correction registration, methods of correction, and the right of correction request, providing a relatively complete study of correction registration with a point leading to the whole; the compensation mechanism is the "perspective" that can best reflect the humanistic care of the publicity of registration and is of great significance to the value maintenance and healthy development of publicity of registration. On the premise of comparing the state compensation mechanism and the user burden mechanism, it proposes suggestions for the post-event relief mechanism for publicity of registration: opposing the user burden mechanism and advocating the persistence of state compensation, while learning from the ownership insurance system in the United States, introducing commercial credit into the compensation mechanism, and constructing a diversified compensation mechanism that combines insurance with its peer sharing mechanism and state burden mechanism, with the aim of building a more robust support system for publicity of registration.
Conclusion Analyses whether China should establish the publicity of registration and general of publicity of registration from form to construction. This is the conclusion of the entire text and also the final purpose of this article. Based on the conclusions of the previous chapters, combined with the development of publicity of registration in various countries, the current legislative trends in China, and the realistic basis for granting publicity of registration in China, it clearly points out that China should adopt relevant provisions on the publicity of registration in the formulation of property rights law and proposes a relatively complete institutional for the establishment of publicity of registration in China.