意大利不动产登记制度研究

On Italian Real Property Registration System

在意大利法律实践中,不动产登记制度甚至超越了法律传统和逻辑理论的重要性,直接制约着物权变动模式的立法选择。意大利不动产登记制度体现了大陆法系两种主要登记制度类型的融合:它在法国模式的基础上形成和发展起来,确立了物权变动的意思主义原则和登记的对抗效力,以及对登记实行形式审查,不动产登记簿采人的编成主义体例等规则,之后又受到德国法律理论和实践的深刻影响。但这种影响仍主要体现在微观制度层面,渗入到以法国模式为样本确立的登记制度体系内部,在共通互补之处融合,在彼此排斥之处替代。前者如对不动产登记公信力的有限承认、登记机构受行政机构和司法机构双重管辖等;后者主要体现为不动产登记簿向物的编成主义的改革,但是最终囿于现实条件未能实现。

In the practice of Italian laws,the real property registration is playing an important role inlegislative options of the real property transfer more than it could be in the legal tradition and logical theory.Italian real property registration demonstrates a fusion of two main registrations of civil law. It was established anddeveloped on the base of French mode which validates the concensualism of real property transfer and opposingeffect after registration in real right transfer,as well as the formal examination and compilation style of indexingby subjects in the registration. In its development,it was also deeply affected by German legal practices. Thiseffect mainly happened in the micro institutions of registration system based on the French mode-covering in thecommon as well as replacing in the difference. For instance,the convergence happened in the institutions of thelimited confirm of public faith of real property registration and dual regulation system under which registrationagency is regulated by administrative agency and judicial agency. Meanwhile,the replacement happened in theinstitution of compilation of real property registration in which a reform of indexing by objects rather than subjectswas tryed,but failed finally for the reason of reality limitation.