我国不动产物权登记错误的损害赔偿责任研究

发布时间：2018-09-02 09:14

【摘要】：我国《物权法》调整基于物之归属与利用产生的法律关系,它的实施对我国社会主义市场经济的健康发展和民事权利的确认与保护发挥着巨大作用,并且通过专节构建了不动产登记制度,建立包括异议登记、更正登记、错误登记法律救济在内的完整体系,明确了登记错误时的申请人与登记机构的损害赔偿责任,体现了注重权利保护的法律观念。然而,《物权法》仅在21条规定了登记错误应承担损害赔偿责任,该规定过于原则化,对于责任的性质、归责原则、赔偿范围等具体操作问题未作明确说明,《不动产登记暂行条例》对这些问题也未作具体回应,有鉴于此,本文以不动产登记为核心,以不动产登记错误为基点,分析登记错误损害赔偿存在的实践问题以及理论争鸣,包括责任性质、责任构成和责任形态,在此基础上探讨损害赔偿责任的实现及保障制度。本文由五部分构成:第一部分通过从立法以及实务两个层面分析现阶段我国登记错误损害赔偿的现状,并由多宗案例总结了损害赔偿出现的困境,包括责任性质之争以及诉讼模式之争。第二部分着重分析了我国登记错误损害赔偿的责任性质。首先通过对不动产登记性质的四种比较讨论,明确了私法行为说更符合我国现状;其次简要论述了不动产错误登记损害赔偿的内涵及在我国法律框架之下造成错误登记的情形;再次在上述两点的理论铺垫下通过对损害赔偿责任性质的国家赔偿责任说和民事赔偿责任说的对比论证,主张将其界定为民事赔偿责任说更符合我国法理及现实需要。并明确由此引发的诉讼应提起民事诉讼为宜。第三部分通过对归责原则的论述认为将损害赔偿责任确定为过错责任更具有正当性,在此种观点的支撑之下论述了损害赔偿责任的构成要件,即侵权行为、损害事实、因果关系和主观上的过错四要件。第四部分是本文的重点所在,通过对比分析登记错误损害赔偿的不同责任形态的主张,包括连带责任、补充责任、不真正连带责任及按份责任,从而确定了申请人与登记机构分别侵权行为下承担的应为按份责任形态。第五部分,对不动产登记错误损害赔偿责任的保障机制提出设想。从登记制度本身来看加强登记人员的职业化,在事前防范登记错误的发生,从事后弥补角度考虑,鉴于我国国情,商业保险和基金制度发展趋于普遍,引入赔偿基金制和责任保险制二元制度确保受害人的权利得到及时足额的救济,同时保证社会正常发展。本文通过对不动产登记错误赔偿责任的分析和论述,以期能够为我国不动产登记错误赔偿责任制度的完善有些许帮助。
[Abstract]:The property Law of our country adjusts the legal relationship based on the ownership and utilization of the property, and its implementation plays a great role in the healthy development of the socialist market economy and the recognition and protection of civil rights in our country. And through the special section of the real estate registration system, the establishment of a complete system, including dissent registration, correction registration, false registration legal relief, clear registration of the applicant and registration agencies when the damage compensation liability. It embodies the legal concept of paying attention to the protection of rights. However, the property Law only stipulates in Article 21 that the registration error shall be liable for damages. This provision is too principled and imputes the principle of liability for the nature of liability. The scope of compensation and other specific operational issues have not been clearly explained, and the Provisional regulations on Real Estate Registration have not made a specific response to these problems. In view of this, this paper regards real estate registration as the core and real estate registration errors as its base point. This paper analyzes the practical problems and theoretical contentions in the compensation for damages caused by registration errors, including the nature of liability, the constitution of liability and the form of liability, on the basis of which the realization and protection system of liability for damages are discussed. This paper is composed of five parts: the first part analyzes the current situation of the registration error compensation in our country from the legislative and practical aspects, and summarizes the plight of the damage compensation by many cases. Including the dispute of the nature of responsibility and the dispute of litigation mode. The second part focuses on the analysis of the nature of liability for registration error damages in China. First of all, through four comparative discussions on the nature of real estate registration, the author clarifies that the theory of private law acts is more in line with the present situation of our country, and then briefly discusses the connotation of compensation for damages caused by real estate misregistration and the situation of causing false registration under the legal framework of our country. Thirdly, under the above two theories, the author argues that the theory of civil liability is more in line with the legal theory and the practical need of our country by comparing the theory of state liability and the theory of civil liability of the nature of the liability for damages. And make it clear that the litigation should be initiated civil action is appropriate. The third part considers that it is more legitimate to determine the liability for damages as fault liability by discussing the principle of liability imputation. Under the support of this viewpoint, the author discusses the constitutive elements of liability for damages, that is, tort, the fact of damage. Causality and subjective fault. The fourth part is the focus of this paper, through comparative analysis of the different forms of liability for registration error damage claims, including joint liability, supplementary liability, non-genuine joint and several liability and share liability, Thus, the applicant and the registration institution should bear the form of liability according to the share under the respective tort behavior of the applicant and the registration institution. The fifth part, puts forward the assumption to the safeguard mechanism of the real estate registration error compensation liability. From the point of view of the registration system itself, we should strengthen the professionalization of registration personnel, guard against the occurrence of registration errors in advance, and consider from the point of view of making up afterwards. In view of the national conditions of our country, the development of commercial insurance and fund systems tends to be widespread. The dual system of compensation fund system and liability insurance system is introduced to ensure the rights of victims to receive timely and full relief, and to ensure the normal development of society. Through the analysis and discussion on the liability of compensation for immovable property registration errors, this paper hopes to be of some help to the perfection of the system of compensation for false registration of real estate in our country.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.2

【相似文献】