중국의 부동산 등기제도와 물권변동

Transfer of property rights and Real Estate Registration in China

&nbsp;&nbsp;China advocated nationwide reform and open door policy in 1978. Since then, China has turned its national policy goals for economic system from planned economy into socialistic market economy system in 1992. Under the planned economy before reform and open door policy in force, China banned any private ownership or transfer of land rigorously, but admitted only use or occupancy of land. However, it came to need the attraction of foreign capital on the way of promoting reform and open door policy continuously. To meet this goal, it has been required to make clear any right or interests of land in use.<BR>&nbsp;&nbsp;In addition, China has faced remarkable changes throughout all spheres including politics, economy, society and culture owing to introduction of Western capitalism and culture under the influence of reform and open door policy inducing whole social change. On the other hand, however, it reveals certain legal and institutional weaknesses with failure to comply with this change, and current laws and regimes relevant to real estate in China belong to those defects.<BR>&nbsp;&nbsp;First, we can point out questions about current real property registration system in China. China administers separate registration offices for land and building in terms of realty registration, resulting in unnecessary consumption of administrative capabilities as well as time and cost from the perspective of parties concerned. Thus, it is necessary to unify those registration agencies in order to resolve these problems, meet environmental needs of real estate trade and maintain real property registration rationally.<BR>&nbsp;&nbsp;Secondly, there is not yet any unified law or regulation relevant to real estate in China. China has confusingly scattered legal provisions about real property in form of legislation, administrative decree, regulation, regional legislation and more. And what is worse, there is even a mixture of inconsistent regulations between central and local government in China, which causes intricate legislative structure in realty registration in China. As a result, there are a series of occurrences about conflicting or overlapping interests in real property, and this conventional legislative system fails to meet the demands of latest socialistic market economy in China. To resolve these problems, it is demanded to integrate scattered real estate legislation systems into one in accordance with Chinese reform and open door policy.<BR>&nbsp;&nbsp;Third, since there is not any explicit provision about legitimate ground for transfer of real right, different hypotheses and cases are suggested to the transfer of real right from various standpoints. Resolution of these controversies necessitates unambiguous legislative provisions.<BR>&nbsp;&nbsp;Until these loopholes of law and regime relevant to real property are definitely filled by legislative means, it is inevitable that there would be challenges in the ongoing execution of Chinese reform and open door policy without a hitch. But the success in filling the loopholes will help China cope with promoted foreign capital attraction and investment, as well as extended real property trade for the benefit of consistent implementation of reform and open door policy. Furthermore, it is also possible that legislative shortcuts are presented to resolve those questions in terms of civil law and real property registration law, including real right law under pending legislation. These efforts will be a good springboard for Chinese economy to ultimately turn into market economy system.