土地房屋权属登记中婚姻关系审查范围探析

A Study on the Examination Scope of the Marriage Relationship in the Registration of Land Ownership

土地房屋权属登记中婚姻关系审查范围混乱问题突出。理论上呈现为实质审查与形式审查的"对立"或"交错"样貌,实践中各登记机构做法不一。透视登记的性质、登记机构的权能、婚姻关系的易变和救济的渠道,实质审查既无依据也难以操作。在实质事项程序化的理念下,应确立合理的审查范围与切实可操作的审查标准:审查范围应限于程序性事项,不再审查当事人的婚姻状况,即不再要求当事人提供婚姻证明材料,代之以询问笔录;审查标准为尽到必要的审慎义务。

There are so much chaos prominent in examination scope of the marriage relationship in theregistration of land ownership. It presented for “opposition” or “staggered” appearance for substantiveexamination and formal examination in the theory. The practice of different registration agencies are not thesame. From the nature of the registration, the powers and functions of the registration, the variable and therelief of the marriage relationship, substantive examination not only has no basis but also difficult to operate.Under the concept of substantive matters, it should establish a reasonable scope of review and practicaloperation of the review criteria. The scope of review should be limited to procedural matters, not to review thestatus of the parties to the marriage. It suggests that the parties are no longer required to provide proof ofmarriage material, which replaced with inquiry transcripts. The review criteria should do the necessary duty ofprudence.