Abstract real estate sale contract registration and notice of registration are in real estate sales contracts signed prior to its acquisition of the property after registration. In practice, it is often confused by the recipient to buy both. In fact, although there is a certain convergence between the two, but in nature, the effectiveness of such a big difference there. In practical operation, it should distinguish these two registration system function, according to pre-contract registration system has been developed mind, clear the value of their legislation, to fully play its role.
Paper Keywords presale contract registration a notice of registration of real estate sale, real estate sale contract registration validity and legislative significance
(A) registration of real estate sale contract effectiveness since 1995, 'Urban Real Estate Administration Law' stipulates that the real estate sale contract registration has been everywhere from the national to the relevant provisions endless. Implemented in 1995, 2007 corrected 'Urban Real Estate Administration Law' Article 45 paragraph establishes the real estate sale contract registration system: the 'pre-sale shall, in accordance with the relevant provisions of the sale contract above the county level s government departments and land management department registration. 'In addition, in 1998 the State Council promulgated the' City Real Estate Development Management Regulations ', the Ministry of Construction promulgated in 1994 and in 2004 revised' urban housing management approach ' , there are about real estate sale contract registration provisions for the pre-registration contract parties obligations, time and registration procedure executive. But for pre-contract registration system effectiveness, the national and sectoral legislation does not specify.
Real estate sale contract registration only from the relevant provisions of the textual representation of view, statute used the 'registration' is used. But in our country, the different types of filing system has different properties and effectiveness, academics have also controversial. Bi Therefore, these provisions do not explicitly validity of the registration of the contract, whether against a third party and other issues. This also led to its effectiveness and nature of the controversy.
June 1, 2003 from the implementation of the 'Supreme Court to hear real estate sales contracts Disputes Interpretation of Several Issues' Article VI: 'The parties to real estate sale contract is not in accordance with the laws and administrative regulations, registration procedure grounds for requesting to confirm the contract invalid and will not support. 'It is suggested that pre-contract registration does not affect the validity of contract of sale. For unregistered real estate sale contract, provided that they meet the legal requirements for entry into force, the same can be identified as valid. But for the real estate sale contract after registration, whether against a third party, there are still controversial.
Until the 2011 'National Working Conference National Civil Trial' Article 16 stipulates: 'the number of copies of the sale of housing are valid and each buyer are required to perform the contract, should have been handled in accordance with the registration of transfer of housing ownership, lawful possession Housing and the contract of sale has established in order to determine the rights and other protection pick. determine established sales contract, the contract should be considered by the competent authorities for the record of the time, the time of signing the contract for as well as other evidence of the contract time. 'This meeting Minutes clear judiciary sales contract registration validity attitude that it does not have the right nature, can not be bona fide third party. After registration of the validity of the contract or even less for housing lawful possession.
(Two) goods made pre-contract registration system set up to see the significance of the legal regulations, pre-contract registration system, the legislative intent is not clear. But according to the law stipulates that used in 'registration' is can be inferred for pre-sale contract is to facilitate the registration authorities will record presale contract to grasp the situation. Although the legislation does not explicitly upper legislative purpose of the system, but in some appropriate policies and regulations has been mentioned, such as 'Haikou Municipal Bureau of Housing and Urban-Rural Development on the implementation of real estate sales contracts signed online and filing confirmation management notice' on the clearly recognized for the purpose of real estate sales record was 'to further regulate the real estate sales, and maintain the legitimate interests of real estate buyers and sellers, real estate transactions to improve the transparency of information, and promote stable and healthy development of the real estate market.'
Combined with relevant laws and regulations regarding pre-contract registration system effectiveness, we can see that on the real estate sale contract registration system intended primarily for the establishment of the executive to the real estate transaction management oversight needs. Through the establishment of the system, so that the government understand the real estate sale of the relevant circumstances.
Comprehensive analysis on the pre-contract registration with the relevant laws and regulations and some local legislation, policies, to some extent, the system can prevent pre-party a room two to sell, contract to protect the interests of the recipient to buy. For example, the relevant policy requirements Haikou City, 'real estate sales contracts signed houses, to have been filed with confirmation of the' Haikou City real estate sales contracts 'for processing notice registration, housing mortgage registration, housing ownership registration and other services.' Meanwhile Hainan 'Housing and Urban-Rural Construction Department on regulating the real estate sales contracts canceled the record change work,' also called 'housing ownership registration of the applicant and the contract for the sale of the buyer inconsistent, housing registration agency shall not apply housing ownership registration. 'To some extent, it can protect the contractor's interests. According to the policy, if the house sold for record pre-party third party other than the contract, the third person will be unable to handle housing ownership registration, which can not really get housing property.
But in fact, by limiting the effectiveness of the system itself, pre-contract registration system for the protection of the rights of parties to the contract sale on this issue can not play any of the basic functions. In practice, there is a pre-party and signed a sales contract and for registration, and later signed a real estate contract with B and let B stay at the house. In this case, according to relevant regulations, in particular the Supreme Court of the meeting minutes, we should first protect the rights of B, then A can only point to the pre-party claims for breach. For A, the sales contract is essentially serve to protect the rights of the role; For developers, as long as no notice of registration, you can enter into with a third party sale of housing; For the third person, just prove their 'good faith' and occupy houses to get priority, and eventually obtained the building ownership.
Second, China's real estate sale and purchase of the nature and effect of notice registration
As a buyer of real estate sale contract does not immediately practical after obtaining the building ownership of their claims to the property after the commencement of the actual period to obtain a certain interval. Therefore, the actual performance of the contract also increased the risk, especially pre-party may be 'a room two to sell, sell more,' real estate sales contracts signed with a number of the buyer. The contract registration, from the institutional setting, and not against third parties. In this context, a way to make the contract claims rem system came into being, 'Property Law' Article XX establishes the Housing Board notice of registration: 'The parties entered into a sale and purchase house or other real property agreements for the protection of Property realized in the future, in accordance with the agreed notice can apply for registration to the registration agency. notice of registration, registration of rights without notice consent, dispose of the property, does not effect of real right. 'Ministry of Construction in July 2008 from the implementation of the' housing registration 'Article 68 notice of registration sanctions on registered housing requirements refinement is actually an extension of this provision.
Notice of registration on the nature of academia still some controversy. There are quasi-property rights, said that the notice of registration of rights to nature is a kind of property claims; property of said claims that the notice of registration is to be registered has the right to request the effectiveness of property, and its essence is to limit reality registration rights holders to dispose of their rights; nature of both property and debt, said that the notice of registration between the credit and right between abundance. I believe that, in fact, notice of registration is the registration of claims, by giving the claims against third parties to protect the interests of creditors, does not make the registration rights holders produce objects dominance. Therefore, in essence, the right to notice of registration is still creditor, but has a certain right nature.
And after the effectiveness of the right to notice of registration, according to civil law and national legislation concerning notice of registration has the right to preserve the effectiveness of preservation overall effectiveness of bankruptcy protection efficacy (effectiveness to meet). Zhi According to China's 'Property Law' provisions of Article XX of the notice of registration only with preservation effect on several other effects not specified. Moreover, according to the method of the representation, not to say, for notice of registration, registration of rights to consent without notice and can not be changed disposition of property, but 'to dispose of the property, does not effect of real right.' According to the principle of distinction of property rights, if pre-parties without authorization will be sold to a third house, third party claims can still be protected.
Third, notice registration system with the comparative sales contract
Notice of the establishment of a registration system, the real estate sale contract for the sale of this credit and right to obtain a longer interval the actual contract form, can effectively protect the interests of property buyers expectations. However, due notice of registration with the sales contract are in real estate sales contracts signed prior to its acquisition of the property after the registration, in practice, there are still some confusion by the recipient to buy both of the situation.
(A) the difference between the first, the two are different in nature. Real estate sale contract registration belongs to the scope of public law, administrative authorities on real estate sale is an administrative tool to use is a national public authority on the market macro-control, supervision and management of an initiative. As for the notice of registration, although theoretically it remains controversial in nature, but it belongs to private law system which is no doubt.
Secondly, the effectiveness of the two are different. Real estate sale contract registration for the executive management of real estate sale of an administrative measure, only confirmed the existence of recording contract, the contract itself does not have any impact on civil effects, nor have public credibility, does not produce against third parties. From the law can be seen very clear notice of the registration system to protect human rights claims registered claims, make the registration rights holders have the right to request an exclusive property nature effectiveness can fight a third party. That can effectively negates the rights of persons other than the registered person registered housing for action, can guarantee the basic human rights of the property is expected to be realized.
Again, whether to force different. As mentioned earlier, real estate sale contract registration areas belonging to public law, the corresponding, for registration of contracts are pre-parties must fulfill the obligations of an administrative sense. The notice of registration commercial parties of their civil rights is a protective measure, the parties may choose to apply generally. While some places in order to regulate the real estate trade order, the public authority extends to the field, the introduction of relevant policies require notice of registration should be conducted pre-parties, such as 'Haikou City Housing Authority housing on pre-order items notice of registration related issues notice' (Sea Fang Zi (2007) No. 132) has provided people in addition to pre-sale contracts should be filed online, but also in the contract within 30 days from the date of notice of application for registration. However, the upper and regulations are not mandatory provisions concerning notice of registration, these policies do not fundamentally change the party filing notice of registration of voluntary autonomy.
(Two) real estate sale contract registration system and the notice of the registration system of the Ministry of Construction of convergence into effect in July 2008 of the 'housing registration' on page 70, to apply for pre-registration of real estate should notice submissions, including the registration The real estate sale contract. This is in fact a prerequisite requirements for notice registration is a pre-contract registration.
Fourth, improve the registration system and the real estate sale contract notice registration system
In legal practice, we should distinguish between the two registration system function, according to pre-contract registration system has been developed mind, clear the value of their legislation, to fully play its role. In particular, it should allow buyers to fully know the difference between these two systems. This pre-sale stage in the two systems coexist, although playing different functions, but also plays a common market order to maintain the role of real estate transactions, but in fact, as mentioned earlier, because buyers do not understand the relevant laws regulations, many buyers do not correctly distinguish the difference between the two, that pre-registration contract as against third parties, or to be confused with the notice of registration.
Meanwhile, the party does not carry out pre-sale of commercial housing registration is only on the written statement 'should' have not implemented a strong punitive measures. Without pre-contract registration, the relevant regulations, policies and no clear penalties. Moreover, according to some local policy, if pre-registered parties without notice, the buyer may notice of application for registration of their own, but not required if the party fails to carry out pre-record contract, the buyer is able to conduct its own record. If the buyer can not be clearly specified contract for the record, according to the notice of registration required for filing with the requirements of the contract, if the seller does not carry out the contract for the record, it is difficult for the buyer notice of registration, in the end, the buyer or the protection of their rights is very passive . Legislation should not only be clear according to the specified pre-registration of the liability side, the buyer should clear the rights and remedies.