Real right is an important property right enjoyed by civil subjects according to law. The system of property rights has a long history. The provisions on land ownership in the laws of the Shang Dynasty are the earliest legal system of property rights in China. There are too many expressions in the classics of traditional Chinese culture to enumerate: Mencius Teng Wengong said: "The people are the way, there is perseverance for those with constant property, and there is no perseverance for those without constant property"; The Book of the Lord Shang says: "If a rabbit goes, hundreds of people will chase it. It is not the rabbit that can be divided into hundreds. It is not determined by the number. People who sell rabbits are full of the market, but thieves dare not take them. It is determined by the number"; In Guan Zi, Seven Ministers and Seven Principals, it is also said that "the law maker is therefore motivated to be successful and afraid of violence, the law maker is therefore determined to stop fighting, and the order maker is therefore known". The foregoing classics tell the truth and importance of the ownership of the title, publicity and public trust, determination and settlement of disputes, and system protection.

Coincidentally, in the Western and Roman law period, there were two concepts in the field of procedural law: "action in rem" and "action in personam". "Litigation right of things" is the protection means of ownership, servitude and other rights, and "litigation right of people" is the protection means of creditor's rights. The two forms a pattern of confrontation and coexistence. That is to say, the concept of real right in Roman law is to show the ownership or accessibility of the obligee to a specific thing through the lawsuit against the thing itself ("lawsuit against the thing"). According to textual research, the academic term "ius in re" was used to describe the term "real right" in medieval Europe.

The term "real right" was formally seen in the Civil Code, which is the provision of the term "real right" in the Austrian General Civil Code in 1811. On the basis of in-depth research on the concepts of real right and creditor's right in German common law, modern civil law and Penderkerton law, the German Civil Code published in 1896 divided property right into real right and creditor's right, and under the title of "real right" (Part 3 of the Code), it stipulated the property right system and its rule system of 443 articles (Articles 854-1296). The establishment of a special property rights section in the civil code to regulate the property rights system and its rule system has a direct impact on the countries that formulate civil codes or property laws in the future. The origin, name and relevant systems of the Property Law of the People's Republic of China (hereinafter referred to as the "Property Law") promulgated in 2007 are also affected by this.

As an important concept in modern and contemporary civil law, property right, together with creditor's rights, constitutes the two cornerstones of property rights in civil law of continental law system. Without the concept of real right and creditor's right, there would be no modern and contemporary civil law system and its system of continental law system, especially the civil code as a formal civil law. The real right is the right of control and the creditor's right is the right of claim; The real right is absolute, and the creditor's right is relative; Real right has exclusive effect, priority effect and recourse effect, while creditor's right has no such effect.

The legal system of property rights "involves the national basis and the people's livelihood". The compilation of property rights is the first sub part of the Civil Code after the compilation of the general provisions, and its importance is self-evident. On the basis of the Property Law, the real right edition absorbs judicial interpretations such as the Judicial Interpretation of the Property Law and the Judicial Interpretation of the Building Ownership Division, and refers to administrative regulations such as the Interim Regulation on Real Estate Registration, the Regulation on Optimizing the Business Environment, the Measures for the Administration of the Registration of Chattel Mortgage, the Measures for the Registration of Pledge of Receivables and other departmental rules, Drawing on the United States Uniform Commercial Code and the UNCITRAL Legislative Guide to the Model Law on Secured Transactions and other extraterritorial systems, it has compiled and set up five sub parts, 20 chapters and 258 articles. Among them, the first general provisions include general provisions, changes in property rights and protection of property rights.

Article 205 of the Civil Code is the first article in the property rights section, which originates from the first paragraph of Article 2 of the Property Law and is the provision on the scope of adjustment, that is, "this section adjusts the civil relations arising from the ownership and utilization of things". Since the establishment of the real right system, after a long historical evolution, the real right system of Roman law with "ownership" as the center and the real right system of Germanic law with "utilization" as the center have been formed. The property rights section of the Civil Code attaches importance to the balance between the ownership and use of things, and between clear ownership and free use, it also considers the division of disputes and the best use of things to achieve the legislative purpose. To determine the ownership of things includes the legal relationship in the acquisition, change, transfer and protection of real rights, and the use of things includes the relationship between use value, exchange value and public interest.

Careful readers may find that Article 1 of the original Property Law is about the legislative purpose and basis of the Property Law, which will be deleted in this compilation of the Civil Code. In addition, the first paragraph of Article 2 of the Property Law is reserved as the adjustment scope of the property rights section, while the second paragraph of the Property Law, "the concept of property", Paragraph 3, "the concept of real right", was transplanted into Article 115 and Article 114, paragraph 2, of the chapter "civil rights" of the General Provisions of the Civil Code This article focuses on analyzing the basic principles of the legal system of real rights by combining the two clauses and the general provisions in Article 116 of the General Provisions as well as the general provisions in the subdivision of the General Provisions of Real Rights.

一、 The Basic Principles of China's Real Right Legal System

（一） Principle of Legality of Real Right

Article 116 of the General Provisions of the Civil Code stipulates that "the types and contents of real rights shall be prescribed by law". This clause is the principle of legality of real right. The type and content of real right are uniformly stipulated by civil law and other laws, and the parties are not allowed to create or change freely according to their own will. The existence of the principle of legality of real right is that the system of real right must be pure, so as to cooperate with its strong effectiveness in the world and establish a clear order of real right transaction.

1、The type of real right is stipulated by law

（1）Academic classification

Theoretically, there can be different classifications according to different standards: common property rights and special property rights can be divided according to different legal categories on which property rights are based; According to the scope of control over the subject matter, it can be divided into complete property right (self property right) and limited property right (other property right); According to the cause of the occurrence of real right or whether there is party autonomy, it can be divided into legal real right and consensual real right; According to the category of the object of real right, it can be divided into real right, movable right and right right; According to whether the change of real right needs to be registered, it can be divided into registered real right and non registered real right; The real right can be divided into the property right with time limit and the property right without time limit according to whether the property right has the duration; According to whether the real right has been obtained, it can be divided into the acquired real right and the expected real right; According to whether the real right has independence or subordination, it can be divided into principal property right and subordinate property right; According to the substantive content of real right, it can be divided into ownership and possession.

（2）Statutory classification

According to Article 114 of the Civil Code, the legal classification of real rights is divided into ownership, usufruct, security interest and possession from the perspective of the object and power of real rights. The ownership is divided into national ownership, collective ownership and individual ownership according to the subject of the right; the ownership of buildings is divided according to the object of the right; and the ownership is divided into adjacent relationship and common ownership according to the relationship between them; The usufructuary right is divided into land contractual management right, construction land use right, house site use right, easement right and residential right; The real right for security is divided into mortgage, pledge and lien; Possession is divided into entitled possession and unauthorized possession.

2、The content of real right is stipulated by law

（1）Legal power content

According to the provisions of Article 114 of the Civil Code, the real right refers to the right holder's right to directly control and exclude specific things according to law. "Direct" means that the obligee can exercise his/her rights according to his/her own will without resorting to others to realize his/her rights. " Domination "has the meaning of arrangement and utilization, including the total power of possession, use, income and disposition." Direct control "also excludes the interference of others, that is, other people have the obligation not to interfere with the exercise of the rights of the property owner. The exclusivity of property rights means that there can be no conflicting property rights on one thing, such as ownership. There can only be one ownership on one thing. Even though several mortgages can be set on one thing, there is no conflict between them because they are paid in priority according to the sequence of mortgage setting. 

There are also details of the content of property rights, such as how long the land contractual management right is contracted, when the right is established, the transfer authority of the right, the rights and obligations of the adjustment, recovery and expropriation of the contracted land, etc. Many provisions in the legal system of property rights are mandatory, and the parties should strictly abide by them and cannot be excluded by their agreement, unless the law provides for exceptions such as "as agreed" and "unless otherwise agreed by the parties".

（2）"Law" includes real right and special law

"Law" in the Legality of Real Right ", refers to the laws, i.e. the laws formulated by the National People's Congress and its Standing Committee, which generally do not include administrative regulations and local regulations, except those explicitly stipulated by laws that can be stipulated by administrative regulations and local regulations. It should be noted that the laws in the property law include both the property law and other laws, such as the Land Management Law, the Fishery Law, the Maritime Law, and the Civil Aviation Law. These laws have provisions on property rights.

（二） Principle of publicity and trust of property rights

Article 208 of the Civil Code stipulates: "The establishment, change, transfer and termination of the real right of immovable property shall be registered in accordance with the law. The establishment and transfer of the real right of movable property shall be delivered in accordance with the law." The way of the establishment, change, transfer and elimination of real right is called the change of real right. On the one hand, this clause is the way to obtain real right and change of real right, and on the other hand, it is the public trust effect of property publicity. The law stipulates the ascription relationship and ascription procedure of the disposable resources. In fact, stipulating the ascription procedure is indirectly stipulating the ascription relationship. The principle of publicity is the ownership procedure in the property law. The principle of public trust actually endows the content publicized by the registration of real estate or the occupation of movable property with credibility. Publicity and public trust are closely linked.

1. Principle of real right publicity

The principle of publicity means that the change of the content of real right must be carried out in accordance with the statutory publicity method to produce the legal effect of the change of real right. At the same time, the publicity method should be sufficient to enable any third party to understand the change of real right. The reason why the establishment and change of real right should be publicized is determined by the nature of real right itself. The real right has absolute exclusive effect, and its obligor is unspecified person, while the obligor performs the obligation on the premise that the obligor knows the obligation, and the right must be displayed. The establishment and transfer of property rights by the parties may involve the interests of a third party, so the establishment and transfer of property rights must be open and transparent, so as to protect the interests of the third party and maintain the security and order of transactions. This requires the establishment of a publicity principle, and the fact of the establishment and transfer of property rights should be disclosed to the public through certain publicity methods, so that the third party can know about the change of property rights. The property right edition of the Civil Code has accepted the normative structure system of the Property Law on the principle of publicity without any modification, and has taken registration and delivery as the publicity methods of real estate and movable property rights changes respectively.

2. Public trust principle of real right

The principle of public trust refers to that the counterpart has reasonable reasons to believe that the right state publicized through the statutory publicity method is the real right state, and has conducted transactions with the registered obligee, so the law of trust should be protected. If the registration system does not generate credibility, it will not only make the registration system useless, but also go against the maintenance of transaction security. The principle of public trust is manifested in two aspects: first, the registered obligee is legally presumed to be the real obligee. This is the so-called positive presumption rule of rights; Second, all transactions with obligees that rely on the rights recorded in the registration should be protected in law.

Note: The credibility focuses on the protection of the trust interests of a bona fide third party. For reasonable reasons, between the parties who have agreed to borrow the name of others to obtain the real right in accordance with the principle of publicity, if the borrowing agreement does not violate the law, the registered obligee may not use the principle of publicity and credibility to realize the rights against the borrower. Of course, the above rights of the borrower shall not antagonize the third party who deals with the registered obligee in respect of the specific object or enjoys the mortgage right. This part will be discussed in detail again in the bona fide acquisition system.

（三） Principle of equal protection of property rights

1. Property rights under various ownership systems are equally protected

The third paragraph of Article 206 of the Civil Code is an organic whole, which reflects the equal protection of property rights under all ownership systems. According to the Constitution, the public economy is the main body, the state-owned economy is the leading force, and the non-public economy is an important part of the socialist market economy. The development of the socialist market economy is an inevitable requirement for adhering to and improving the basic socialist economic system, adhering to the public ownership as the main body, and the joint development of all ownership economies, consolidating and developing the public economy, and encouraging, supporting and guiding the development of the non-public economy, It is inseparable from the equal legal status of market subjects and the platform of socialist market economy for common and harmonious development.

Compared with other legal systems, such as the contract law, which is in line with international standards and takes into account China's national conditions, the property law is more local and inherent, because the property law is closely linked with ownership, while China's ownership has Chinese characteristics: at the legislative level, the property code reflects the basic economic system of socialism with Chinese characteristics; At the judicial level, The Opinions of the Supreme People's Court on Giving Full Play to the Role of Judicial Functions and Strengthening Judicial Protection of Property Rights put forward that: "We should adhere to the principle of equal rights, equal opportunities and equal rules for all types of ownership of the economy, treat all types of property rights as subjects of litigation and the application of laws equally, and ensure that the property rights of the public and non-public sectors of the economy are inviolable. We should pay attention to the equal protection of non-public property rights. We should properly handle all types of foreign-related cases, and equally protect the litigation rights and substantive rights and interests of Chinese and foreign parties."

2、Equal protection of real rights under all right subjects

Article 207 of the Civil Code stipulates: "The real rights of the state, collective, private and other obligees shall be equally protected by law, and shall not be infringed by any organization or individual." In the General Provisions, Article 113 stipulates that "the property rights of civil subjects shall be equally protected by law". The compilation of property rights is a further emphasis and specific refinement of the general provisions. As the property law that regulates the property relations between equal subjects due to the ownership and utilization of things, the subject of property relations has equal legal status, which is the premise of the property law to adjust equal property relations, and this is also the premise of the existence of the property law and even the civil law. There is no civil law without equal relations, and there is no property law without equal property relations. Only by establishing the principle of equal protection, can the property order and transaction order be established to promote the development of market economy and comprehensive social progress.

二、 Change of real right

The establishment, change, transfer and elimination of real right are called real right changes, such as ownership transfer, usufructuary right creation, security interest creation, etc. Among them, there are many problems to be discussed: as far as the object of property right change is concerned, there are movable property and immovable property; As for the legal act of property right change, whether to follow the principle of separation, distinguish between property right act and creditor's right act, or to follow the principle of unity, without distinguishing between property right act and creditor's right act; As for the cause and effect of the change of real right, there are two kinds of reasons: causation and non causation; As far as the form of property right change is concerned, whether it is only a declaration of will or a formal legal act is required. To thoroughly understand the above questions, it is better to comb the development history of the theory of property right change and find the answers in the rolling wheel of history.

Since the 19th century, the civil law of the continental law system has regulated the change of property rights. Its origin can be traced back to the Roman law from 753 BC to 565 AD. After the feudal autocracy in Europe, the civil law codification movement that lasted 1000 years (476-1500 years) in the Middle Ages and the beginning of the 19th century has formed a "tripartite confrontation" regulatory pattern in the civil law of the continental law system on how property rights change. This is the real right formalism represented by German civil law, the creditor's right formalism represented by Austrian, Spanish and Swiss civil laws, and the creditor's right formalism represented by French and Japanese civil laws.

Creditor's right will doctrine, real right formalism and creditor's right formalism are three basic legislative models of modern and contemporary civil law norms of various countries based on the change of real right of legal act. Among them, the creditor's right doctrine has the advantage of making the change of real right convenient and simple, but the change of real right is effective only because of the intention expression of the creditor's right act, and it cannot be recognized from the outside whether the real right is changed and the period of change, so it has to take delivery or registration as its confrontation element, but this has caused a complex problem that the legal relationship of real right is inconsistent with the internal relationship between the parties and the external relationship with the third party. However, the formalism of real right, which takes delivery or registration as the effective element of the change of real right, can not only guarantee the transaction security, but also make the parties clear about the existence of the real right relationship and the change period, and make the internal relationship between the parties completely consistent with the external relationship to the third party. However, its recognition of the independence and non causation of the juristic act of real right is not only inconsistent with the actual situation of general social life, but also due to the adoption of non causation results, the protection of the security of static property ownership (the protection of the first seller) is also inadequate. Formalism of creditor's rights not only has the advantages of creditor's rights formalism and property rights formalism, but also overcomes the shortcomings and shortcomings. The creditor's right formalism has the advantages of making the real right transaction convenient and the parties' intention respected, and it also has the advantages of making the internal relationship between the parties involved in the property right change consistent with the external relationship with the third party, and effectively ensuring the security of the property right transaction.

The current legislative model system of real right change in civil law system and common law system can be summarized as follows:

It is generally believed that China adopts the effective registration mode of creditor's rights formalism , that is, the creditor's rights such as sales, gifts and leases are taken as the reasons for the change of property rights, and the external form of the change of property rights needs to be reflected through real estate registration and movable property delivery. In principle, the property right edition of the Civil Code adopts the formalism of creditor's rights and, exceptionally, the will of creditor's rights for changes in property rights due to civil legal acts. The following is divided into real estate and movable property to discuss the change of real right under civil legal acts respectively, and then analyze the change of real right under non causal civil legal acts:

The change of real right in accordance with civil legal act refers to the change of real right based on the unilateral declaration of will of one party or the common declaration of will of both parties (or multiple parties). Such change of real right can only be effective after following the general principle of real right publicity. Real property is registered and movable property is delivered.

（一） For the change of real property rights based on civil juristic acts, registration is the effective element in principle, and registration is the antagonistic element in exception

As for the relationship between the change of real property right and the registration of real property right, the principle of publicity and public trust is adopted in the real property right of civil law, which takes registration as the publicity method and mainly takes registration as the element of real property right change or disposal. There are mainly two legislative examples in the continental law system: one is registration effectiveness doctrine, and the other is registration confrontation doctrine. According to the provisions of Article 209 and Article 214 of the Civil Code, the establishment, change, transfer and termination of the real estate property right shall become effective after being registered according to law; Without registration, it shall not take effect, except as otherwise provided by law. Where registration is required by law, it shall become effective when it is recorded in the real estate register. That is to say, the principle of registration taking effect and the exception of registration confrontation. The exception is otherwise stipulated by the law, such as "the right to land contractual management shall be established when the contract for the right to land contractual management takes effect; without registration, it shall not act against a bona fide third party" as stipulated in Articles 333 and 335 of the subsequent title of property; Another example is the provision in Article 374 that "the easement shall be established upon the effectiveness of the easement contract.... Without registration, it shall not act against a bona fide third party", and the provision in Article 547 of the contract title that "in the transfer of creditor's rights, the mortgage as a subordinate right shall be transferred with the principal creditor's rights, and the transfer registration shall not be taken as the effective element."

With regard to whether the act of real right and the act of creditor's right are separated and independent, Article 215 of the Civil Code stipulates: "Unless otherwise provided by law or agreed by the parties, a contract on the establishment, change, transfer and elimination of the real right of immovable property entered into between the parties shall come into force upon the establishment of the contract; if the property right is not registered, the validity of the contract shall not be affected." That is, the validity of real right is distinguished from the validity of contract: the change of real right is distinguished from its basic relationship or causal relationship, and the result of the change of real right and the reason for the change of real right are two legal facts. A contract is only a consensus between the parties, and it is not necessarily linked with registration. If the contract has the effective elements specified by law, the contract has become effective, and the contract effectiveness and the change of property rights are not necessarily linked. A legally established and effective contract may not produce the result of the change of property rights. For example, if the transferor breaches the contract or the object of property rights is lost, the validity of the contract cannot be denied by the result of the non occurrence of the change of property rights; If the contract is valid and the real estate property right change registration is completed after performance, the property right change at this time is the result of contract performance. In this sense, the contract is the cause of the property right change. Without this basic relationship, the party's right to request the property right change will also lose the right source foundation and cannot request the other party to perform the change obligations such as delivery or assistance registration. Registration is generally not aimed at contractual acts, but is linked with the change of real property rights. It is a publicity method for the change of real property rights. The change of real property rights can only take effect at the time of registration.

Therefore, it is said that "God belongs to God and Caesar belongs to Caesar". The contract related issues belong to the adjustment of contract law, and the ownership and utilization of things belong to the adjustment of property law; The task of contract law is to promote transactions and encourage competition, while the goal of property law is to settle disputes and make the best use of things. Both of them are dynamic and static, coordinate and cooperate in the goal of organization and economic development, and perform their respective duties. Their effectiveness rules cannot replace each other. At the same time, we should correctly understand the different division of labor and roles of property rights and administrative law in the ownership and utilization of property rights and in the management of social affairs such as property rights protection. There is a cross between civil and administrative cases in trial practice, which is more prominent in the field of real estate registration. Article 1 of the original Judicial Interpretation of the Property Law (I) and the new Judicial Interpretation of the Property Code (I) both stipulate: "If a party files a civil lawsuit due to the ownership of the real right of a real estate, as well as the sale, gift, mortgage, etc., which are the basis for the registration of the real right of a real estate, it shall be accepted in accordance with the law. The party has applied for the settlement of the above civil dispute in an administrative lawsuit, unless the people's court hears the dispute together. “

From the above analysis, it is not difficult to see the importance of real estate registration in the ownership and change of real property rights. Real estate registration refers to that the registration authority stipulated by the state records the establishment, transfer and change of real estate property rights in the real estate register according to the application of the obligee. Its significance lies in providing a unified and open legal basis supported by the national credibility for the real estate transaction. The so-called credibility refers to that the registered obligee is legally presumed to be the real obligee. Even if the facts later prove that the registered real right does not exist or has defects, the law still recognizes that the behavior of the person who trusts the existence of the real right and has engaged in the real right transaction has the same legal effect as the real right. Next, we will focus on the specific issues related to "real estate registration".

1. Real estate registration authority: natural resources department

Article 210 of the Civil Code stipulates that "the registration of immovable property shall be handled by the registration authority of the place where the immovable property is located. The state implements a unified registration system for immovable property." As early as before the formulation of the Property Law, some experts called for the establishment of a unified real estate registration. At that time, the departments involved in real estate registration included land management departments, housing management departments, agricultural management departments, forestry management departments, marine fishery departments, and geological and mineral departments. With the increase of the frequency of social and economic exchanges and the expansion of the scope of exchanges, the registration management model of "multiple joint management and wide distribution" was adopted, Real problems such as repeated registration and data dispersion not only bring inconvenience to the parties involved in the transaction, but also bring malpractice to the administrative management and waste of resources.

The unified registration of real estate is imminent. The competent department of land and resources under the State Council (now the natural resources department) is responsible for guiding and supervising the national real estate registration, which is the confirmation of the results of the institutional reform of the State Council. The reason why the land and resources department (now the natural resources department) is responsible for the real estate registration is that land is the most important and basic real estate. Real estate such as houses depend on land and cannot exist independently of land.

(1) Responsibilities of real estate registration authority

Article 212 of the Civil Code stipulates the duties of the real estate registration authority: to examine the ownership certificate and other necessary materials provided by the applicant; Ask the applicant about the registration items; Register relevant matters truthfully and timely. The review of real estate registration is divided into substantive review and formal review. The main difference is whether the real estate registration staff has the right to review the reasons for the change of real estate property rights. The review of reasons is substantive review, and the review of reasons is formal review.

From the perspective of the legislative provisions of various countries, whether the legislation adopts the adversary doctrine of real estate registration or the effective doctrine of registration, there is no inevitable difference in the form of real estate registration review. For example, France adopts registration antagonism, and its real estate registration review is mainly formal review. While Germany adopts the registration effectiveness doctrine, its real estate registration review is also mainly a formal review. Switzerland, which adopts the principle of registration and effectiveness, adopts substantive examination. Therefore, whether substantive examination or formal examination is adopted mainly depends on the requirements for the credibility of real estate registration in legislation. From the practice of various countries, no matter what form of real estate registration review is adopted, both the efficiency of real estate registration review and the maintenance of the credibility of real estate registration should be considered in practice.

From the content of the review, on the basis of formal review, the duties of the real estate registration authority in China appropriately integrate some features of substantive review: first, from the perspective of review materials, it includes materials proving the ownership of real estate property rights, materials indicating the real estate situation and other necessary materials; Second, the real estate registration agency can inquire about the registration applicant. To ensure the authenticity of the registration content, the real estate registration agency can inquire about the registration content; Third, real estate institutions can also check real estate on the spot when necessary; Fourth, the purpose of substantive review to give greater review power to real estate registration agencies is to ensure the accuracy of registration.

Judicial practice: The real estate register is an official document document, which records the concept expression or understanding of the public administration organ. Article 28 of the Guiding Opinions of the Beijing Higher People's Court on Several Issues Concerning the Application of Law in the Trial of Housing Sales Contract Disputes (for Trial Implementation) (JGFF [2010] No. 458) stipulates that: "In civil cases of non ownership disputes such as house sales, one party raises an objection to the house register and ownership certificate provided by the other party as evidence of ownership. In principle, the court only reviews the authenticity of the house register and ownership certificate in form. If it is verified, it can be used as evidence in civil proceedings."

(2) Prohibited acts of real estate registration authority

In order to regulate the behavior of the real estate registration agency, the Civil Code stipulates the prohibition in Article 213, that is, the real estate registration agency shall not require the evaluation of the real estate, repeat the registration in the name of annual inspection, or do other acts beyond the scope of registration responsibilities. The provisions of this article are mainly aimed at some problems found in the process of legislative research. In some places, the real estate registration agencies have improper attitude in performing their duties and are not strict in management. They do not consider how to accurately and timely register the application items and how to provide convenience for the parties. Instead, they use their power to set up numerous obstacles for the parties, make great efforts to seek personal benefits for the units and individuals, produce many items such as evaluation and annual inspection, and charge high fees. In order to avoid arbitrary charges, the Civil Code also stipulates in Article 223: "Real estate registration fees shall be charged on a case by case basis, and shall not be charged according to the area, volume or proportion of the price of the real estate."

2. Real estate registration carrier: real estate register and real estate ownership certificate

(1) Real Estate Register

Article 216 of the Civil Code stipulates: "The real estate register is the basis for the ownership and content of the real right."

With regard to the scope of the real estate register, according to the provisions of Article 5 of the newly revised Interim Regulations on Real Estate Registration, the registered real estate rights include: ownership of collective land, ownership of buildings and structures such as houses, ownership of forests and trees, contractual management rights of cultivated land, forest land, grassland and other land, right to use construction land, right to use house sites, right to use sea areas, easement, mortgage, Other real estate rights that need to be registered according to the law. The constructive force of the real estate register is only related to rights, specifically those real rights with registration. Therefore, the records of the natural conditions of the real estate in the real estate register, such as the mark, area, location, location and boundary of the real estate origin, are all factual issues and are beyond the constructive force of the real estate register.

As for how to make the real estate register, there are two different models: the compilation of things and the compilation of people. The codification of things refers to the establishment of different registers according to the nature of real estate, which is adopted by German and Japanese civil laws. For example, Article 14 of the Japanese Real Estate Registration Law stipulates that "the register is divided into land register and building register" However, human codification refers to setting up registers according to different real estate rights, which is adopted by France. In the current provisions of our country, the real estate register is set up separately according to the nature of real estate, and most people in the theoretical circle believe that it should adopt the principle of compilation of things.

Judicial practice: In practice, the real estate register is often inconsistent with the name or the actual registration error. Here, the author sorted out the error situation of relevant entities and the path of procedural rights protection.

The reasons for the inconsistency between the obligee recorded in the real estate register and the real obligee are as follows: the jointly owned real estate of husband and wife is registered in one party's name; After the death of the decedent, the real right of the estate as an inheritance shall still be registered in the name of the decedent, or in the name of a person other than the heir or legatee; The actual obligee borrows the name of others to register the real estate in the name of others; Individuals use false information to apply for real estate registration, resulting in the registration authority's false entries in the real estate register; When the registration authority reviews the registration application materials, the items recorded in the real estate register are untrue due to intent or negligence; The real estate right holder confirmed by the court or arbitration commission's effective judgment document is inconsistent with the right holder registered in the real estate register; The change of real estate property right is not caused by legal acts, and the relevant items recorded in the real estate register are not updated in time; The legal acts such as marriage, inheritance, co ownership, sale, gift and mortgage, which are the basis of real estate registration, are invalid and revoked, and the real estate register fails to restore the original registration in time, leading to false registration.

With regard to the way of safeguarding rights that the obligee recorded in the real estate register is inconsistent with the real obligee, Article 2 of the Judicial Interpretation of the Real Right Compilation (I) stipulates: "The party concerned has evidence to prove that the record in the real estate register is inconsistent with the real right form, and he is the real obligee of the real property right of the real estate. If he requests to confirm that he enjoys the real right, it shall be supported." For disputes over the ownership and content of real right, this article and the above-mentioned judicial interpretation shall apply to actions for real estate confirmation and payment, and also to other types of special relief procedures for persons outside the case: first, for actions for cancellation by a third party, in addition to the request made by the parties to cancel the content of the effective judgment, the people's court can also hear and judge the request made by the parties to confirm their civil rights and interests at the same time. Second, in the case of an objection by the executor, if an outsider raises a claim to confirm his rights at the same time, the people's court may make a decision in the judgment at the same time. Third, if an outsider applies for retrial and believes that the original judgment or ruling is wrong, it shall be handled in accordance with the procedure for trial supervision. The people's court makes a retrial order on the application of an outsider, and the retrial is conducted according to the procedure of first instance. Since the retrial is conducted in accordance with the procedure of first instance, it is natural to allow the outsider of the case to withdraw the claim for confirmation of rights in the procedure of first instance.

Here, it lists the situation of entity error and the path of procedural rights protection that the real estate register is inconsistent with the real obligee. How to divide and stop disputes in specific disputes is analyzed and described in detail in the objection registration and correction registration below.

(2) Real estate ownership certificate

Article 217 of the Civil Code stipulates that "the ownership certificate of the real estate is the proof that the obligee enjoys the real right of the real estate". Ownership certificate can also be used as evidence of the existence of rights, but it is not the main basis for determining rights. The real estate ownership certificate is only the external manifestation of the contents recorded in the real estate register [32]. Generally speaking, we need to pay attention to the presumption of real estate registration, but neither the real estate ownership certificate nor the real estate register has absolute evidential force. The real estate register as evidence only has the effect of presumptive evidence. The court first treated the real estate register as true, and ordered the other party to provide counterevidence if it had any objection; If the dissenting party adduces counter evidence to prove that the records in the register are indeed wrong, the registered records will be overturned.