不动产预告登记制度的搁浅与重启——以我国《民法典》颁行为契机

The Advance Notice System of Real Estate Registration--Frustration and Reactivation

不动产预告登记制度是我国《物权法》新创立的制度,我国《民法典》也规定了该制度。此种预告登记制度在实践中适用时被搁置,存在制度内在原因与外在条件的不利因素。房屋所有权转让、抵押前办理预告登记现实需求不大。预告登记要求双方合意客观上缩减了买受人预告登记的机会。网签备案制度与预告登记制度功能重叠,抵消了对预告登记制度的需求。司法裁判不承认预抵押登记具有优先受偿权效力使预抵押登记失去价值与意义。创新制度在实践中被搁浅的根本原因在于制度借鉴时的拼接与适用时法理观念的冲突造成争议与同案不同判。破解预告登记制度的障碍在于对预抵押登记性质与效力的重新认识。应明确预抵押登记的本登记性质与预抵押登记的抵押效力,让制度回归其设计的本原。重启预告登记制度应扩大预告登记适用范围,登记机关对凡需要经过登记才能取得不动产物权的协议均可纳入预告登记的范围,我国《民法典》新设立的居住权协议亦可包括在内;实行网签备案登记与预告登记并轨,以预告登记替代备案登记。

The advance notice system of real estate registration was newly introduced by the Real Property Law and continually adopted by the Civil Code.But the advance notice system is frustrated when it is applied in practice.There is little demand for the advance notice before the house ownership transfer and mortgage in practice.The requirement of mutual agreement on the advance notice objectively reduce the buyer's chance of applying for an advance notice.The online record system and the advance notice system overlap in terms of the function and thus the demand for the advance notice system is reduced due to disadvantageous factors of such system in internal reasons and external conditions.The advance notice for mortgage loses its value and significance because the judicial judgment does not recognize its priority of claim.The fundamental reason for the frustration of the innovative system in practice lies in the disputes and different judgments for similar cases due to the conflict between legal concepts while borrowing such system from abroad and applying it domestically.The solution to removing the obstacles faced by the advance notice system of registration lies in the re-understanding of the nature and effectiveness of the advance notice of registration,by clarifying the nature of advance notice of registration as a definitive registration and the effective mortgage of advance notice of mortgage,thus leading the system return to its original design.To reactivate the advance notice system,its application scope should be expanded so that the registration authority may include any agreement concerning real property right obtained through registration into the scope of the advance notice including the agreement on right of habitation newly established in the Civil Code.The online record and advance notice should be combined by replacing record with advance notice.