Answer: the registration of real estate refers to the right holder to apply for the state function, will be related to the property rights of real estate and its changes in the matter, recorded in the real estate register of facts.
In China, the property law system provides for the establishment, change, transfer and extinction of real estate property rights, should be registered in accordance with the law. The establishment, change, transfer and annihilation of real estate property rights by the law registration, effective; without registration, not effective, determined the state of real estate to implement a unified registration system. Established the types of registration of real estate in China are initial registration, change registration, correction registration, objection registration, advance registration, reply registration and cancellation registration and other specific forms.
In our country, real estate registration has four kinds of effects: publicity, formation, presumption and credibility. The publicity power of registration refers to the right of property in the change, must be the right of property change of fact through certain methods to the public, so that the third party knows the right of property change, in order to avoid the third party suffers damage and protect the security of the transaction. The formative effect of registration is that registration has the effect of making the change of property right of real estate based on legal action effective or not. That is, the real estate property right because of the legal act of loss of change, only by the law registration, can occur the effect of change of property right, without registration, the law does not recognize the change of property right. The presumption of registration refers to the correctness of the presumption of the right effect, refers to the real estate register of the right content of the parties for the correct real estate right effect. The credibility of the registration means that the registration of the rights of the person in the law is presumed to be the real rights of the person, if the facts later prove that the registration of the right of property does not exist or defects, for the trust of the existence of the right of property and has engaged in the right of property transactions, the law still recognizes the right of property has the same legal effect as the real one.
China's property law also determines the real estate registration fault legal responsibility provisions: the parties to provide false materials to apply for registration, causing damage to others, shall bear the responsibility for compensation. And the state agency for registration error, causing damage to others, the registration agency shall bear the liability. After compensating, the registration agency may recover from the person who caused the registration error. In the case of improper registration of objections, which causes damage to the right holder, the right holder may request damages from the applicant.
II. Briefly describe several registration systems for real estate.
Answer:Real estate registration, refers to the application by the right holder or interested party, by the state full-time department will be related to the real estate property rights and its changes in matters recorded in the real estate register of facts. The real estate registration system in recent and modern countries can be roughly summarized into three models: deed registration system, rights registration system and Torrens registration system.
1, the deed registration system refers to changes in real estate property rights, by the parties to the contract that is effective, but not registered, not against third parties. In law, Japan, Italy, the United States, most states also adopted this system. Deed registration system, real estate property right change and not to register for the effective condition, as long as the parties agree, contract, can happen property right change effect. The registration authority registration only according to the law should be submitted to the content of the deed to be registered, the content of the deed is true, whether there is a defect, etc. do not make a substantive examination, so this kind of registration does not have the credibility, only has the effect against third parties.
2, the right registration system, also known as the substantive registration, is the right to real estate according to the establishment of legal action, transfer, change and annulment of matters such as non-registration shall not take effect of the legislative system. For the first German civil law, and for Switzerland, Austria, Hungary and other countries, as well as China's Taiwan region adopted. According to the system of registration of rights, any change of property rights of real estate based on legal acts must be registered, if the parties merely reached a change of property rights of the consent, without completing the registration procedures, the change of property rights of the expression of intention not only does not produce credibility, but also does not produce the legal effect of the change of property rights.
3, Torrens registration system, also known as the right to deliver the doctrine of registration, refers to the substantive examination of the certificate of rights issued by the registration authority to confirm the property rights to facilitate the transfer of real estate property rights registration system. This system is also used in Australia, the United Kingdom, Ireland, Canada, the Philippines and more than ten states in the United States, including California and Massachusetts. Under the Torrens registration system, when registering real estate for the first time, the registration authority determines the status of the rights of the real estate in accordance with certain procedures and makes a land title. When real estate is transferred, a certificate of transfer is made between the parties and submitted to the registry together with the land title. After examination by the registration authority, the transfer of rights is recorded in the registration book. The transferee delivers a new certificate or records the transfer of rights on the original certificate so that the third party can clarify the ownership status of the real estate from the certificate.
The above three modes of real estate registration are distinctive. Deed registration system and France, Japan's property changes in the creditor's meaning, property transactions only by the parties to the independent expression of the meaning of the actual change in property rights, realize the "respect for the meaning of the" social ideal, to protect the transaction quickly. But it is harmful to the security of the transaction.
Right registration system and Torrance registration system, overcome the deficiencies of the deed registration system. Registration has the credibility, so that the trust registration of bona fide third party's interests have been thoroughly protected, thus effectively protecting the transaction security, so that the relationship between the parties to the change of the property right and the publicity of the relationship to the third party is clear, the change of the property right of the period can be clear, the property right transaction relationship has become transparent. However, the procedures of the property rights transaction is complicated, does not have the deed registration system under the transaction of convenience.
Third, the difference between security rights and usufructuary rights.
Answer: security rights and usufructuary rights are rights in rem, are other rights in property law. However, the security right refers to the realization of the claim for the establishment of other property rights, usufruct refers to the subject matter of the use and benefit for the purpose of the establishment of other property rights, the two have qualitative differences:
First of all, the establishment of the two different purposes. The purpose of the establishment of the security right is to make the main claim can be realized. The purpose of the establishment of usufruct is to realize the value of the use of the object.
Secondly, the nature of the two rights are different. Security rights are subordinate to the subordinate rights, the establishment of the main debt. And the usufruct is mostly with independence of the main right.
Third, the subject matter is different. The subject matter of the security right can be movable property, real estate or rights, but, the subject matter of the usufructuary mainly for real estate.
Fourth, the effect of changes in the form of object value is different. Changes in the value of the object of the security right has no effect on the security right. However, the object of the usufructuary value form changes in the right to have a direct impact.
IV. Briefly describe the scope of property subject to mortgage.
Answer: in our country, the property mortgaged can be largely movable, immovable or rights. But mostly real estate. Most of this property has the value of the function, can be sold for the price and priority. According to the property law, the debtor or the third party has the right to dispose of the following properties can be mortgaged: 1, buildings and other land attachments; to mortgage the building, the building within the scope of the right to use the construction land and mortgage. If the construction land use right is mortgaged, the building on the land is mortgaged together. If the mortgagor fails to mortgage them together in accordance with the provisions of the preceding paragraph, the unmortgaged property shall be deemed to be mortgaged together.2 Land use right for construction purposes;3 Land contractual management right of barren land and other land acquired by way of bidding, auction, public negotiation, etc.;4 Production equipment, raw materials, semi-finished products, and products; hereby, by written agreement of the parties concerned, the enterprises, individual industrial and commercial tenants, and agricultural producers may mortgage the existing as well as the to-be-existing production equipment, raw materials, semi-finished products, products, and so forth. , raw materials, semi-finished products, products mortgaged, the debtor does not perform the due debt or the occurrence of the parties agreed to realize the mortgage, the creditor has the right to realize the mortgage on the movable property priority compensation. 5, buildings under construction, ships, aircraft; 6, means of transportation; 7, laws and administrative regulations do not prohibit the mortgage of other property. And China's Property Law also stipulates that the following properties shall not be mortgaged: 1) land ownership; 2) collectively owned land use rights such as arable land, residential land, self-reserved land and self-reserved mountains, except those that can be mortgaged as stipulated by law; and the construction land use rights of townships and village enterprises shall not be mortgaged separately. If a building of a township or village enterprise is mortgaged, the construction land use right within its occupancy area is mortgaged together.3. Educational facilities, medical and healthcare facilities and other social welfare facilities of public institutions and social organizations, such as schools, kindergartens and hospitals, etc., for the purpose of public welfare;4. Properties of which the ownership or right of use is unknown or disputed;5. Properties that have been seized, detained or supervised in accordance with the law;6. Construction land use right mortgage. After the right of use is mortgaged, the new building on the land is not a mortgaged property. When the construction land use right realizes the mortgage right, the new buildings on the land shall be disposed of together with the construction land use right, but the mortgagee shall not have the right to receive priority compensation for the price of the new buildings.7. Other properties that are not allowed to be mortgaged under the provisions of laws and administrative regulations.
V. Mortgage contract and mortgage registration.
A: The mortgage contract is the mortgagee and the mortgagor signed a contract of a security nature. Mortgagor with certain property to the mortgagee to set mortgage security, when the debtor can not fulfill the debt, the mortgagee can according to law to dispose of the collateral proceeds of the price of priority compensation. Mortgage registration is the legal registration authority of the collateral has been mortgaged for registration of publicity, in order to obtain the credibility of the legal external manifestation of the method, divided into mortgage registration and cancellation of mortgage registration.
In reality, in order to ensure that the creditor realizes the claim in time, in most cases, the creditor and debtor by entering into a mortgage contract or set up a mortgage clause to ensure that the main claim can be realized. Mortgage contract is to ensure that the main contract can be performed from the contract, in the mortgage contract set up from the claim - mortgage, mainly for the main contract of the main claim to realize and set up. The mortgagor with his own disposal of certain property to the mortgagee to set the mortgage security, when the debtor can not fulfill the debt, the mortgagee can be disposed of in accordance with the law of the price of the collateral to receive priority compensation. In the mortgage contract, according to the contract law or the law of debt adjustment of the mortgage, its nature is the nature of the request of the claim, is a kind of subordinate claim. The real estate mortgagor to provide mortgage property for mortgage registration, registration, mortgagee and mortgagee based on the mortgage property can be set up for the property relationship, at this time, the mortgage property, there is a mortgage called the right to the right of the subordinate property. The bulk of the movable property (such as cars, boats, airplanes, etc.), but the provisions of the movable property right registration, with the effect against the bona fide third party. Mortgages registered by the applicable property law adjustment.
Fifth, the difference between mortgage and pledge
Mortgage is to guarantee the performance of the debt, the debtor or a third party does not transfer the possession of the property, the property will be mortgaged to the creditor, the creditor in the debtor does not perform the mature debt or the occurrence of the parties to achieve the mortgage situation, the creditor has the right to the property and priority of the realization of the property security right. The debtor or a third party is the mortgagor, the creditor is the mortgagee, the property to provide security for the mortgaged property.
Pledge is also one of the security methods, refers to the creditor and the debtor or the debtor to provide a third person to negotiate a written contract, transfer the debtor or the debtor to provide a third person's movable assets or rights of the possession of the debtor, in the case of the debtor fails to fulfill the debt, the creditor has the right to the price of the property and priority compensation. Here, the creditor who enjoys the right of pledge is called the pledgee; the debtor or the third person who transfers the property to the possession of the pledgee to provide security is called the pledgor; and the property which the pledgor transfers to the creditor's possession to provide security for the claim is called the pledge or the pledge.
Mortgage and pledge belong to the same basic form of security rights, are to ensure that the claim can be realized and set up, the same to provide a certain amount of property for security, and in the claim is not realized, the creditor has the right to change on the secured property for the realization of the value and priority. But the mortgage and pledge has a major difference:
1, in the main body, the subject of the mortgage relationship called mortgagee and mortgagee. The subject of the pledge relationship is called the grantor and the pledgee.
2, in the object, the property provided by the mortgage is called collateral, the property provided by the pledge is called the pledge, most of the collateral is immovable property, and the pledge can only be in the movement does not change the nature of the original movable property and rights.
3. In terms of content, the rights set up by a mortgage draw are called mortgages, while the rights set up by a pledge are called pledges.
4, in terms of the nature of the right, the mortgage relationship of the debtor or a third party does not transfer possession of its particular property, the property as security for the claim. Pledge is the creditor's possession of the pledge as a requirement for the transfer of possession of the pledged property by the pledgor for the establishment.
5, according to the property law, most of the mortgage should be registered mortgage, mortgage from the date of registration. And, the pledge through the performance of the pledge contract, since the pledge or the pledge is transferred to the pledgee in possession when the establishment.
Six, briefly describe the effectiveness of the mortgage mortgage on the secured claims.
Answer: first of all, the effectiveness of the mortgage for secured claims. The main thing is to guarantee the fulfillment of the debt. The debtor or a third party to provide a certain amount of property as collateral, the debtor does not fulfill the debt, the creditor has the right to discount the collateral or to auction the collateral price to be compensated. The scope of the security includes the main claim and interest thereon, liquidated damages, damages for damages, costs of keeping the secured property and of realizing the security right. If the parties agree otherwise, the agreement shall be followed. During the guarantee period, if the secured property is destroyed, lost or expropriated, etc., the holder of the security right may be compensated in priority for the insurance, compensation or indemnity obtained. If the period of performance of the secured claim has not expired, the insurance, indemnity or compensation may also be withdrawn.
Secondly, the effect of the mortgage on the mortgagee. Mainly: 1, the mortgagee's right of preservation. That is, if the mortgagor's behavior is sufficient to reduce the value of the mortgaged property, the mortgagee has the right to require the mortgagor to stop its behavior. If the value of the mortgaged property is reduced, the mortgagee has the right to demand that the value of the mortgaged property be restored or that security corresponding to the reduced value be provided. The mortgagor does not restore the value of the mortgaged property or provide security, the mortgagee has the right to require the debtor to settle the debt in advance. 2, the mortgagee's right of disposal. That is, if the claim is transferred, the mortgage that guarantees the claim is transferred together, and the mortgage may not be separated from the claim and transferred separately or as a security for other claims. The mortgagor may waive the mortgage or the subordination of the mortgage. The mortgagee and the mortgagor may agree to change the subordination of the mortgage as well as the amount of the secured claim, etc., but the change of the mortgage shall not adversely affect the other mortgagees without their written consent. If the debtor creates a mortgage on its own property and the mortgagee waives the mortgage, the subordination of the mortgage or the change of the mortgage, the other guarantors shall be exempted from the liability of the guarantee to the extent that the mortgagee loses the right of priority of payment, unless the other guarantors undertake to provide the guarantee still. If the debtor fails to perform the due debts or the circumstances agreed by the parties to realize the mortgage right occur, the mortgagee may agree with the mortgagor to receive the priority compensation with the discounted price of the mortgaged property or with the price obtained from the auction or sale of the mortgaged property. The mortgagee and the mortgagor did not agree on the realization of the mortgage, the mortgagee may request the people's court to auction, sell the mortgaged property. Mortgaged property discount or sold, should refer to the market price. 3, the right of subrogation. The same property to two or more creditors mortgage, auction, sale of mortgaged property from the price in accordance with the following provisions of the settlement: (1) the mortgage has been registered, in accordance with the registered order of settlement; in the same order, in accordance with the proportion of the claim; (2 mortgage has been registered prior to the unregistered to be paid; (3 mortgage is not registered, in accordance with the proportion of the claim.
Third. Effect of mortgage on mortgagor. Right to rent mortgaged property. If the mortgaged property was rented out before the conclusion of the mortgage contract, the original lease is not affected by the mortgage. If the mortgaged property is rented out after the creation of the mortgage, the rental relationship shall not be subject to the registered mortgage. Assignment of the right to the mortgaged property. During the period of mortgage, if the mortgagor transfers the mortgaged property with the consent of the mortgagor, he shall pay the price obtained from the transfer to the mortgagor to settle the debt in advance or to withdraw the money. The part of the transferred price exceeding the amount of the claim shall belong to the mortgagor, and the shortfall shall be settled by the debtor. During the period of mortgage, the mortgagor may not transfer the mortgaged property without the consent of the mortgagee, except when the transferee has extinguished the mortgage by settling the debt on behalf of the mortgagor. The right to create multiple mortgages on the mortgaged property
VIII, a brief description of the rights of the mortgagee
In the mortgage burden, the mortgagee has the following main rights:
Preservation rights. If the mortgagor's behavior is sufficient to reduce the value of the mortgaged property, the mortgagee has the right to require the mortgagor to stop its behavior. If the value of the mortgaged property is reduced, the mortgagor has the right to demand that the value of the mortgaged property be restored or that security corresponding to the reduced value be provided. If the mortgagor does not restore the value of the mortgaged property or provide security, the mortgagor has the right to demand the debtor to settle the debt in advance.
Mortgagor's right of disposition. If a claim is assigned, the mortgage securing the claim is assigned together, and the mortgage may not be assigned separately from the claim or as security for other claims. The mortgagee may waive the mortgage or the subordination of the mortgage. The mortgagee and the mortgagor may agree to change the subordination of the mortgage as well as the amount of the secured claim, etc., but the change of the mortgage shall not adversely affect the other mortgagees without their written consent. If the debtor creates a mortgage on its own property and the mortgagee waives the mortgage, the subordination of the mortgage or the change of the mortgage, the other guarantors shall be exempted from the liability of the guarantee to the extent that the mortgagee loses the right of priority of payment, unless the other guarantors undertake to provide the guarantee still. If the debtor fails to perform the due debts or the circumstances agreed by the parties to realize the mortgage right occur, the mortgagee may agree with the mortgagor to receive the priority compensation with the discounted price of the mortgaged property or with the price obtained from the auction or sale of the mortgaged property. The mortgagee and the mortgagor did not agree on the realization of the mortgage, the mortgagee may request the people's court to auction, sell the mortgaged property. If the mortgaged property is discounted or sold, reference shall be made to the market price.
Subordination rights. Where the same property is mortgaged to more than two creditors, the price derived from the auction or sale of the mortgaged property shall be paid off in accordance with the following provisions. If the mortgage is registered, it shall be satisfied in the order of registration; if the order is the same, it shall be satisfied in proportion to the claims; if the mortgage is registered, it shall be satisfied before the unregistered one; if the mortgage is unregistered, it shall be satisfied in proportion to the claims.
IX Briefly describe the effect of an easement.
Easement is the right to utilize another person's real estate in accordance with the contract for the convenience of using one's own real estate or for the improvement of its efficiency. An easement is created when the easement contract takes effect. If the parties require registration, they may apply to the registration agency for registration of the easement; without registration, it shall not be against a bona fide third party. The effectiveness of the easement has the following main aspects:
1. The easement is established when the easement contract comes into effect. The land has been established on the land contract management right, construction land use right, residential use right and other rights, without the consent of the above usufructuary, the landowner shall not establish an easement. If the landowner enjoys or is burdened with an easement, when the land contract management right or the right of use of residential land is established, the land contract management right or the right of use of residential land shall continue to enjoy or be burdened with the easement that has been established.
2. The easement shall not be transferred separately. In case of transfer of land contract management right, construction land use right or residential land use right, the easement right shall be transferred together, unless otherwise agreed in the contract.
3. Easements may not be mortgaged separately. In case of mortgage of land contract management right, construction land use right, etc., the easement is transferred together with the realization of the mortgage right.
4. Effect of change of easement. When the land in need of service and the land contract management right, construction land use right and residential land use right on the land in need of service are partially transferred, if the transferred part involves easement, the transferee shall enjoy the easement at the same time. In the case of a partial transfer of the serviced land and the land contract management right, construction land use right, or residence base use right on the serviced land, if the transferred portion involves an easement right, the easement right shall be binding on the transferee.
5, easement registration effect: the parties require registration, you can apply for registration of easement to the registration agency; without registration, shall not be against the bona fide third party.
6, the duration of the easement effect: the duration of the easement by the parties to the agreement, but shall not exceed the land contract management rights, construction land use rights and other rights of usufructuary remaining period.