预告登记制度探讨
发布时间：2019-03-30 23:15
【摘要】：预告登记是不动产登记中的一项重要制度，其目的是为了保全一项将来要发生的不动产物权变动的请求权。在我国，2007年颁布的《物权法》第20条第一次以法律形式确立了预告登记制度。该制度的确立是我国在物权法登记制度中一次革命性的进步，尤其对房地产交易当中的商品房预售行为起着规范和指导作用，有力地打击了不良开发商进行“一房多卖”、重复抵押以及恶意欺诈骗贷等不法行为，从而保障了处于弱势地位购房者的权利，维护了不动产交易市场的稳定和安全。 预告登记制度在我国的最终确立，是社会经济发展的产物，是我国不动产交易市场进一步发展的需要。该制度出台之前，在我国商品房预售当中，一直实行的是商品房预售合同登记备案制度，但因其只是一种行政强制管理措施，，不具有法律效力，不法开发商只需承担公法上的行政处罚，而不能从私法上保护权益被侵害的购房者。经过我国法学界的专家们长期的研究和探讨，最终《物权法》第20条确立的预告登记制度弥补了预售合同登记备案制度的种种缺陷，为顺利地进行商品房预售交易提供了强有力的法律支撑。然而，由于预告登记制度在我国确立的时间比较晚，制度设计尚不成熟，在法律实践和运用当中也出现了较多的问题。为了日后在不动产交易中更好地适用法律，还需要进一步完善该制度。本文将分四个部分对预告登记制度进行探讨： 第一部分是预告登记制度的概述。该部分系统介绍了预告登记制度的基本理论，包括了预告登记制度的内涵界定、历史溯源及产生背景、特点、法律性质以及效力等方面。 第二部分是预告登记制度的立法考察与比较研究。该部分通过对德国、瑞士、日本以及台湾地区预告登记制度的立法考察，从适用范围、效力等两方面进行了比较研究，从而给我国预告登记制度的研究以启示。 第三部分是我国预告登记制度的历史沿革。该部分通过讲述我国在商品房预售领域一直实行的商品房预售合同登记备案制度的利弊以及与预告登记制度的区别，得出建构预告登记制度的迫切性和必要性。同时，介绍了预告登记制度的立法过程以及《物权法》第20条确立的预告登记制度内容的解读。 第四部分是预告登记制度在我国商品房预售领域中的应用及完善。该部分介绍了预售商品房之预告登记制度的创设背景以及在商品房预售领域的应用情况。针对实行当中出现的问题，从制度的适用范围、效力以及程序设计等方面进行探讨并提出完善建议。
[Abstract]:Notice registration is an important system in real estate registration, the purpose of which is to preserve the claim right of a real property right change that will occur in the future. In our country, article 20 of the property Law, promulgated in 2007, establishes the notice registration system for the first time in the form of law. The establishment of this system is a revolutionary progress in the registration system of property law in our country, especially it plays a normative and guiding role in the pre-sale behavior of commercial housing in the real estate transaction, and has effectively cracked down on the bad developers to carry on "one house to sell more". Illegal acts such as repeated mortgage and malicious fraud and loan fraud protect the rights of buyers in a vulnerable position and maintain the stability and security of the real estate trading market. The final establishment of the pre-notice registration system in our country is the product of the development of social economy and the need of further development of the real estate transaction market of our country. Before the introduction of this system, during the pre-sale of commercial housing in our country, the registration and record system of commercial housing pre-sale contract has been implemented, but because it is only an administrative compulsory management measure, it has no legal effect. Illegal developers only have to bear administrative penalties in public law, and can not protect the infringed rights and interests of buyers from private law. After a long period of research and discussion by experts in the field of law in China, the system of pre-notice registration established in Article 20 of the property Law makes up for all kinds of defects in the registration and filing system of pre-sale contracts. For the smooth conduct of commercial housing pre-sale transactions provide a strong legal support. However, due to the late establishment of the pre-notice registration system in China, the design of the system is not yet mature, and there are many problems in the practice and application of the law. In order to better apply the law in real estate transaction in the future, the system needs to be further improved. This paper will be divided into four parts to discuss the notice registration system: the first part is an overview of notice registration system. This part systematically introduces the basic theory of the pre-notice registration system, including the connotation definition, historical tracing, background, characteristics, legal nature and effectiveness of the pre-notice registration system. The second part is the legislative investigation and comparative study of the pre-notice registration system. Through the legislative investigation of Germany, Switzerland, Japan and Taiwan, this part makes a comparative study on the scope of application and the effectiveness of the notice registration system in Taiwan, so as to enlighten the study of the notice registration system in China. The third part is the historical evolution of China's pre-notice registration system. By telling the advantages and disadvantages of the pre-sale contract registration system and the difference between the system and the notice registration system in the field of pre-sale of commercial housing, the urgency and necessity of constructing the pre-notice registration system are drawn in this part. At the same time, it introduces the legislative process of the notice registration system and the interpretation of the content of the notice registration system established by Article 20 of the property Law. The fourth part is the application and perfection of advance notice registration system in the field of commercial housing pre-sale in China. This part introduces the establishment background of advance notice registration system of pre-sale commercial housing and its application in the field of pre-sale of commercial housing. In view of the problems in practice, this paper discusses the scope of application, effectiveness and program design of the system and puts forward some suggestions for improvement.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.2
本文编号：2450588
[Abstract]:Notice registration is an important system in real estate registration, the purpose of which is to preserve the claim right of a real property right change that will occur in the future. In our country, article 20 of the property Law, promulgated in 2007, establishes the notice registration system for the first time in the form of law. The establishment of this system is a revolutionary progress in the registration system of property law in our country, especially it plays a normative and guiding role in the pre-sale behavior of commercial housing in the real estate transaction, and has effectively cracked down on the bad developers to carry on "one house to sell more". Illegal acts such as repeated mortgage and malicious fraud and loan fraud protect the rights of buyers in a vulnerable position and maintain the stability and security of the real estate trading market. The final establishment of the pre-notice registration system in our country is the product of the development of social economy and the need of further development of the real estate transaction market of our country. Before the introduction of this system, during the pre-sale of commercial housing in our country, the registration and record system of commercial housing pre-sale contract has been implemented, but because it is only an administrative compulsory management measure, it has no legal effect. Illegal developers only have to bear administrative penalties in public law, and can not protect the infringed rights and interests of buyers from private law. After a long period of research and discussion by experts in the field of law in China, the system of pre-notice registration established in Article 20 of the property Law makes up for all kinds of defects in the registration and filing system of pre-sale contracts. For the smooth conduct of commercial housing pre-sale transactions provide a strong legal support. However, due to the late establishment of the pre-notice registration system in China, the design of the system is not yet mature, and there are many problems in the practice and application of the law. In order to better apply the law in real estate transaction in the future, the system needs to be further improved. This paper will be divided into four parts to discuss the notice registration system: the first part is an overview of notice registration system. This part systematically introduces the basic theory of the pre-notice registration system, including the connotation definition, historical tracing, background, characteristics, legal nature and effectiveness of the pre-notice registration system. The second part is the legislative investigation and comparative study of the pre-notice registration system. Through the legislative investigation of Germany, Switzerland, Japan and Taiwan, this part makes a comparative study on the scope of application and the effectiveness of the notice registration system in Taiwan, so as to enlighten the study of the notice registration system in China. The third part is the historical evolution of China's pre-notice registration system. By telling the advantages and disadvantages of the pre-sale contract registration system and the difference between the system and the notice registration system in the field of pre-sale of commercial housing, the urgency and necessity of constructing the pre-notice registration system are drawn in this part. At the same time, it introduces the legislative process of the notice registration system and the interpretation of the content of the notice registration system established by Article 20 of the property Law. The fourth part is the application and perfection of advance notice registration system in the field of commercial housing pre-sale in China. This part introduces the establishment background of advance notice registration system of pre-sale commercial housing and its application in the field of pre-sale of commercial housing. In view of the problems in practice, this paper discusses the scope of application, effectiveness and program design of the system and puts forward some suggestions for improvement.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.2
【参考文献】
相关期刊论文 前1条
1 曾颖;;我国的商品房预告登记制度初探——对《物权法》不动产预告登记制度的思考[J];传承;2008年08期
本文编号：2450588
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