What Is Immovable Property?

The so-called real estate refers to the physical objects that cannot be moved or moved according to their physical properties, which will seriously damage their economic value ^[1] . Article 92 of the "Guarantee Law" stipulates that "immovable property referred to in this law means land, houses, forests and other ground attachments."

The so-called real estate refers to the physical objects that cannot be moved or moved according to their physical properties, which will seriously damage their economic value ^[1] . Article 92 of the "Guarantee Law" stipulates that "immovable property referred to in this law means land, houses, forests and other ground attachments."

Chinese name

real estate

Foreign name

immovable property

Real estate concept

Article 2 (2) of the Property Right Law states: "Things referred to in this law include real and movable property. If the law provides that a right is an object of real right, it shall comply with its provisions."

The so-called real estate refers to the physical objects that cannot be moved or moved according to their physical properties, which will seriously damage their economic value ^[1] . Article 92 of the "Guarantee Law" stipulates that "immovable property referred to in this law means land, houses, forests and other ground attachments."

The so-called movable property refers to things other than real property, which refers to things that can move in nature and do not damage their economic value, such as televisions and books.

The differences between the concept of movable property and real property are mainly reflected in the following: first, whether it can be moved. Movable property can usually be moved, while immovable property cannot be moved. Second, whether mobile is economically justified. Land attachments such as houses may also be able to move, but once moving costs a lot, and movable property can usually be moved, even heavy machinery and equipment can be moved, and its moving loss is small compared to real property. Third, whether the land is attached. Except for land, other properties such as houses and forests are attached to the land and are usually immovable in space. If movement occurs, it affects its economic value. Movable property is usually not attached to land.

Real estate rights concept

Real right

The term "real right" originally originated from Roman law. Article 2 (3) of China's "Real Right Law" clearly states that "property rights referred to in this law refer to the right holders to directly control and exclusive rights to specific properties in accordance with the law."

According to Article 2 of the Property Law, property rights, as a legal relationship, have characteristics that are different from those of other property legal relationships, and are expressed in the following points: First, the subject of property rights is a specific right holder, and various civil subjects can be Include them, such as state owner, collective owner, private owner. Second, the object of real right is mainly a specific physical object. Unlike property laws such as intellectual property rights, real right is not primarily an object of intangible property or intellectual results, but mainly an object as its object. The third is that the real right is a kind of dominance in nature, which is the direct control of the right by the right holder, which determines the characteristics of priority, follow-up and so on. Fourth, property rights are exclusive rights, that is, two ownership rights cannot exist on the same thing, two other real rights that contradict each other in content cannot be established on the same thing, and anyone has the obligation not to infringe on the real right. As well as the right holders to exercise their power, they have the right to exclude others from infringement and obstruction ^[1] .

Real estate rights

From the different forms of the object of real right, it can be divided into real property right, movable property right and real property right.

Real property rights refer to real rights in which real property is the object, such as land ownership and land use rights. Movable property right refers to the real right with movable property as the object, such as the ownership of a vehicle. The real right of the right mainly refers to the real right established on the right, such as the right of pledge, the mortgage of the right to use the construction land, etc. The purpose of this distinction is that, firstly, usufructuary property rights can usually be established in real estate, but movable property cannot, and secondly, in terms of changes in real property rights, real estate is registered and real estate is delivered.

Real estate registration system

Changes in property rights and registration of real estate

Real right change refers to the general term for the establishment, alteration, transfer, and elimination of real rights (Article 9 of the Real Right Law). The reasons for the change in real right, that is, the legal facts that caused the change in real right, include civil legal acts, de facto acts, and direct provisions of the law. In addition to changes in property rights based on legal acts, in addition to the provisions of laws, the private law autonomy between parties should be fully respected, and certain publicity methods must be adopted. Changes in property rights that are not based on a legal act generally occur directly in accordance with legal provisions or factual acts, and generally do not require public disclosure. The change of real right based on legal behavior is the legal form of market transactions, and it belongs to the normal state of change of real right regulated by the real right law. The parties based on consensus or other legal actions, and after completing a certain method of publicity, complete certain changes in real rights, which are called "changes in real rights based on legal acts". The process includes two stages of consensus and publicity. ^[2]

The mode of change of real estate right refers to the legal method for the creation, modification and elimination of real estate right. As the publicity method of real estate rights is registration, the change of real property rights can be divided into two modes, namely the registration requirements mode and the registration countermeasures mode. The registration requirements mode refers to the effective requirements for changes in real property rights during registration. Without registration, the real property rights will not change. Registered confrontation means that without registration, changes in property rights can be effectively established in law, but cannot be opposed to a third party in good faith. ^[3]

Real estate registration concept

"Real property registration means that the state registration agency records the changes in real property rights in the real property register and makes them available for public inspection." ^[4] "The publicity method of real property rights is registration. The so-called registration refers to the land and its fixed objects The acquisition, loss, and alteration of the ownership or other rights (usage rights and security rights) are recorded in a special register held by a full-time agency in accordance with legal procedures. The possession relationship between land and its anchorages is very complicated, usually involving the interests of the public and the third party, and the direct owner of the real property is generally not the owner of the real property but a non-owner " ^[5] " " The legal adjustment of the real estate ownership relationship makes it possible to see at a glance the various real rights set on real estate. Since the end of the 18th century, countries have used registration as a publicity method for the enjoyment and change of real estate rights. " ^[5]

Effect of real estate registration

Article 9 of China's "Law on Property Rights" stipulates that "the establishment, alteration, transfer, and extinction of real property rights shall take effect upon registration in accordance with law; without registration, they shall not take effect, except as otherwise provided by law. Natural resources, ownership can be left unregistered. "This is the formal adoption of registration requirements as a general principle with the exception of registration confrontation. It mainly includes the following aspects:

The first is the effect of changes in property rights. Generally speaking, changes in property rights that occur through legal acts have the effect of changes in property rights since the date of registration. Any changes in real property rights that require registration in accordance with the law are Registration is required in accordance with the law, and the establishment and change of real rights occur only from the time of registration. Article 14 of the Property Right Law states that "the establishment, alteration, transfer and extinction of real property rights shall be registered in accordance with the provisions of law, and shall take effect when recorded in the real property register."

The second is the presumption of rights, which means that the registered right holder should be presumed to be the legal right holder. In the case where the registration is not corrected and there is no objection registration, the registered right holder can only be presumed to be the real right holder. The validity of such registration is confirmed in Article 16 of China's "Real Right Law".

The third is the effectiveness of good faith protection. It means that the registered right holder is legally presumed to be the real right holder. Even if it turns out that the registered real property right does not exist or is defective, it is believed that those who trust the existence of the real right and have engaged in real property transactions. People, the law still recognizes that their actions have the same legal effect as real real rights. ^[6]

Real estate registration agency

Registration should be handled at a registration agency. A registration agency refers to an agency that accepts materials submitted by applicants within a certain jurisdiction and handles registration of ownership and other property rights. "Many countries and territories use courts as registration agencies" ^[7] . Article 10 of China's "Property Law" stipulates that "registration of real estate shall be handled by the registration agency where the real estate is located. The state implements a unified registration system for real estate. The scope of unified registration, registration institutions and registration methods are prescribed by laws and administrative regulations." The Property Law does not provide for registration agencies.

On November 20, 2013, the State Council executive meeting decided to integrate the real estate registration responsibilities and establish a unified real estate registration system. The former Ministry of Land and Resources was responsible for supervising the unified land, housing, grassland, woodland, sea area and other real estate registration systems across the country, and basically achieved The "four unifications" of registration institutions, registers, registration basis and information platforms ^[8] .

Article 4 of the "Interim Regulations on the Registration of Real Estate" states that "the state implements a unified registration system for real estate. The registration of real estate follows the principles of strict management, stability and continuity, and convenience to the masses. Real estate rights that real estate right holders have enjoyed in accordance with the law are not affected by registration agencies and procedures The changes are affected. "Article 6" The State Council's competent land and resources department is responsible for guiding and supervising the nationwide real estate registration work. Local people's governments at or above the county level shall determine a department as the real estate registration agency in the administrative region and be responsible for real estate registration work, and Accept the guidance and supervision of the real estate registration authority of the superior people's government. "

On January 1, 2016, the "Implementation Rules for the Provisional Regulations on the Registration of Real Estate" was officially released for implementation. This is another key node in the construction of a unified registration system for real estate in China, and an important step in the development of a modern country ruled by law. This indicates that China's unified registration system of real estate, led by the Real Property Law, supported by the Interim Regulations on Real Estate Registration, and supported by supporting rules and regulations, such as the Detailed Rules, has basically formed, providing a comprehensive implementation of the unified registration system of real estate. Full institutional basis and solid guarantee of the rule of law ^[9] .

Correction registration, opposition registration and advance notice registration

Correction of registration

When the right holder or interested party believes that the items recorded in the real estate register are wrong, after applying for corrections with the written consent of the right holder, or if there is evidence to prove that the registration is indeed wrong, the registration agency shall correct the wrong items. Article 19 of the Property Law provides that "when the right holder or interested party considers that the matters recorded in the real property register are wrong, they may apply for correction of registration. The right holder recorded in the real property register agrees to the correction or has evidence to prove that the registration is indeed wrong. The registration agency should make corrections , it is worth noting that correction registration is the authority of the registration agency, and the final registration of corrections should be completed by the registration agency, so the correction registration can be completed in the registration procedure, and does not need to be completed through litigation procedures . "

2. Objection registration

It means that if an interested party has any objection to the ownership of the real right recorded in the real estate register, it can register the objection to protect its rights. Article 77 of the "House Registration Measures" stipulates that "when a house registration agency accepts objection registration, it shall record the objection matters in the house register objection". Article 19, paragraph 2 of the Property Law provides that "If the right holder recorded in the real property register does not agree to the correction, the interested party may apply for opposition registration. If the registration agency registers the opposition, the applicant shall within 15 days from the date of opposition registration If no lawsuit is filed, the objection registration will be invalid. If the objection registration is improper and causes damage to the right holder, the right holder may ask the applicant for damages. "

The characteristics of objection registration are: the objection is not a registration of the state of change in property rights itself, the parties apply for objection registration, the main purpose is to break the public credibility of the registration, to avoid real property in dispute with property rights to be obtained in good faith by a third party, so as to its civil proceedings Provide full-time confirmation or collect more evidence for direct correction registration, providing a temporary guarantee ^[10] .

3. Advance notice registration

Advance notice registration is a system created by German civil law in the Middle Ages. Article 20 of China's "Property Law" stipulates that "the parties sign an agreement to buy or sell a house or other real property rights. After registration, if the real estate is disposed of without the consent of the advance notice registration, the real property effect will not occur. After the advance notice registration, the creditor's rights are eliminated or the registration is not applied within three months from the date of real estate registration, the advance notice registration is invalid. . "

Advance notice registration is a concept corresponding to this registration. It refers to a pre-registration that is applied to a registration agency to ensure the realization of a claim for claims that is intended to change future property rights. For example, the parties signed a contract for the sale of off-the-plan houses, because the house has not yet been completed, so the buyer has not yet obtained the property rights. In principle, advance notice registration is a voluntary registration in nature. In terms of effectiveness, advance notice registration itself is not a public method of commendation of the results of the change, but only in order to protect the right holder in obtaining the real right during the change of real right. A form of publicity ^[11] .

Land System with Chinese Characteristics

After years of exploration, China has gradually formed a land system with Chinese characteristics based on public ownership, the main line of protecting arable land and saving land, and the main content of property rights protection, use control, and market allocation. The land system framework with Chinese characteristics, which is basically adapted to the basic national conditions of China's primary stage of socialism and the socialist economic system with Chinese characteristics, has been formed ^[12] .

Land ownership and use rights in China

1.Overview

Article 10 of China's Constitution stipulates that "land in cities is owned by the state. Land in rural and suburban areas is owned by the collective, except where the law stipulates that it is owned by the state. House sites, self-reserved land, and self-reserved mountains are also collectively owned. For the needs of the public interest, the state may expropriate or requisition land in accordance with the law and compensate it. No organization or individual may invade, buy, sell or illegally transfer land in other forms. The right to use the land may be transferred in accordance with the law. All Organizations and individuals using land must use the land reasonably. "Laws such as the Property Rights Law and the Land Management Law also make the same provision.

Article 4 of the Land Management Law stipulates that the state implements a land use control system. The state compiles a general land use plan, stipulates land use, and divides land into agricultural land, construction land and unused land. Strictly restrict the conversion of agricultural land into construction land, control the total amount of construction land, and implement special protection for cultivated land. The agricultural land referred to in the preceding paragraph refers to the land directly used for agricultural production, including cultivated land, forest land, grassland, farmland water utilization land, aquaculture water surface, etc .; construction land refers to land used to build buildings and structures, including urban and rural housing and public facilities. , Land for industrial and mining, land for transportation and water conservancy facilities, land for tourism, military facilities, etc .; unused land refers to land other than agricultural land and construction land. Units and individuals using land must use the land strictly in accordance with the uses determined by the overall land use plan.

"The usufructuary property right system is the best way to fully maintain the public ownership and play the utility of natural resources such as public land." "With the usufructuary property right system, other civil entities other than the state and collectives use land and other natural resources. It is conducive to the realization of the legislative purpose to ensure the best use of the goods. " ^[13] Article 117 of the Property Law stipulates that "the usufructuary owner shall have the right to possess, use, and gain on real or movable property owned by others". The land use rights in our country are mainly realized through the usufructuary property rights of land, which mainly include the right to use construction land, the right to land contractual management, the right to use house sites, and easements. The following are the most important land use rights and The land contract management right is taken as an example for illustration.

2. Construction land use right

The Real Property Law 135 stipulates that "the owner of the right to the use of construction land shall have the right to possess, use, and profit on state-owned land in accordance with the law, and shall have the right to use the land to construct buildings, structures and auxiliary facilities." In China, urban land is state-owned, but the state does not directly use the land for business and other activities. In order to maximize the benefits of land, realize the optimal allocation of land resources, and promote the prosperity and development of the market economy, the state must establish the right to use construction land, thereby handing over state-owned land to natural persons, legal persons or other organizations for use.

There are five legal characteristics: First, the object is state-owned land in principle, and this right "although it is a real property right, the so-called real property is limited to land, and no construction land use right can be set on the building"; The content of the right is "use the state or collective-owned land to build buildings, structures and their ancillary facilities according to the set purpose, and enjoy ownership of them according to law." The ownership of a person is restricted "; the fourth is" the establishment must be paid in principle, but state agencies, military departments, relevant people's organizations, and relevant public institutions can be obtained by means of free allocation "; the fifth is according to the different purposes, The period of the right to use is different, 70 years for residential land, 50 years for industrial, cultural, educational, health, sports, commercial, tourism, and recreational land, and 50 years for comprehensive or other land.

First, the transfer and allocation of construction land use rights

Article 137 of the Property Right Law states: "Establishment of the right to use construction land may take the form of transfer or allocation. For industrial, commercial, tourism, entertainment, and commercial residential land, as well as those who have more than two intended land on the same land, they shall Adopt public auctions such as bidding and auction to transfer. "According to this, it can be known that the acquisition of the right to use construction land in China includes two methods: administrative allocation and transfer.

The allocation of construction land use rights, according to Article 23 of the Urban Real Estate Management Law, "the allocation of land use rights refers to the approval by the people's government at or above the county level according to law. The act of granting its use, or giving land use rights to land users for free, "has four characteristics ^[13] , one is for the needs of the public interest. The second is set through administrative actions. The third is to obtain it for free. Fourth, there is generally no deadline.

For the transfer of construction land use rights, Article 8 of the "Urban Real Estate Management Law" stipulates that "the transfer of land use rights means that the state transfers state-owned land use rights (hereinafter referred to as land use rights) to land users within a certain period of time. The user pays the land use right transfer fee to the state. "" The main obligation of the state or collective in the transfer is to transfer the land use right to the land user within a certain number of years. The main right is to collect the land use right. The transfer fee. "" Given that the contract for the transfer of land use rights is of major interest to both parties, Articles 138 and 139 of the Property Right Law provide that the bidder, auction, agreement and other transfer methods are used to establish the construction land use right. A contract for the assignment of the right to the use of construction land shall be concluded in writing, and the right to use the construction land shall be established at the time of registration.

Second, the content of the right to use construction land.

The rights of the owner of construction land use rights include: first, the right to own, use, and gain land; second, the right to use state-owned land for construction; third, the right to retain buildings; fourth, the right to use construction land and the ground The rights to buildings, structures and their ancillary facilities; the fifth is the right to automatically renew the right to use residential land. The obligations of the owner of the right to the use of construction land include: first, the obligation to use the land reasonably and to protect the environment; second, not to change the use of the land; and third, to pay the necessary fees.

Third, the extinction of construction land use rights

In addition to the extinction of construction land use rights due to the general extermination of property rights, they are also extinct for the following special reasons. One is abandonment, the other is revocation. The revocation of the construction land use right is owned by the land owner, and the third is the occurrence of the agreed cause. Fourthly, the term has not been renewed, fifthly, it is recovered in advance due to the needs of the public interest, and sixthly, it has disappeared due to the loss of land. ^[5]

3. Land contracting right

Article 125 of the Property Right Law stipulates that "the owner of the land contractual management right has the right to possess, use, and profit from the cultivated land, forest land, grassland, etc., which he has contracted to operate, and has the right to engage in agricultural production such as plantation, forestry, and animal husbandry." It has the following legal characteristics: First, the main body is all agricultural operators. Except for the agricultural outdoor composed of members of the collective economic organization, there is no restriction on the main body of the contractual management right of rural land such as barren mountains, barren ditches, barren hills and barren beaches. Second, the right takes the agricultural land owned by the collective economic organization or the state-owned agricultural land for long-term use as the object. Third, the right is the usufructuary right of farming, breeding or animal husbandry on the land of others for agricultural purposes. The fourth is the usufructuary right set for agricultural purposes. If land is used for planting bamboo and wood, it is the content of the right to use construction land. Fifth, the establishment of this right is not necessary to pay the consideration. Sixth, the right is a property right of limited duration. ^[5]

First, the acquisition of land contractual management rights

According to the provisions of the Property Law, there are two ways to obtain it.

The first is to obtain according to legal acts, and it is divided into two ways. The first is to obtain according to the establishment of the land contracting operation contract. Article 127 of the Property Right Law stipulates that "the land contracting operation right is obtained from the land contracting operation right. Established when the contract comes into effect. "" The land contract management right is an independent usufructuary right, but since China has not yet established an effective rural land registration system covering all regions, the "Property Law" does not require registration. " []. The second is to obtain land contract management rights through tendering, auctions, public consultations, etc. According to Article 133 of the Property Right Law, three points must be noted. One is that the subject matter is limited to "four wastelands", and the other is that the contractor is not limited to the collective economic organization. Members, natural persons and legal persons outside the collective economic organization can also be obtained. The third is the three methods of bidding, auction and public consultation.

The second is to obtain by reasons other than legal acts. There is only one kind of inheritance. When the successor dies and the inheritance begins, the heir will acquire the land contractual management right of the inherited land, and registration is not necessary.

Second, the content of the right to land contractual management ^[13]

The rights of the owner of the land contract management right include: First, the tenure, the right of use and the right to income. Occupation means that after the land contract management contract takes effect, the right holder has the right to occupy collective land, engage in contract management, and use means the right to use the collective Land, engaged in agricultural production such as plantation, forestry, animal husbandry, etc., can use the contracted land to build necessary auxiliary facilities, and the income refers to the income obtained from agricultural products grown in the contracted land. The second is the right of independent operation, that is, the right of the right holder to organize agricultural production and operation activities and dispose of products according to his own will. The third is the right to renew the contract. After the expiry of the contract right, the contractor has the right to continue to contract collective land and enjoy the right to land contractual management. The fourth is the right of circulation. The right holder has the right to circulate the right to land contractual management in accordance with law through subcontracting, swapping, and transfer. Fifth, the right to refuse to illegally recover or adjust the contracted land. On the one hand, according to Article 131 of the Property Right Law, unless the Rural Land Contracting Law provides otherwise, the contractor shall not recover the contracted land during the contract period. According to the provisions of Article 131 of the Real Property Law and the Rural Land Contract Law, if there are other provisions, the provisions shall be followed. Article 26 of the "Rural Land Contract Law" provides for the recovery of contracted land. Sixth, the right to collect compensation refers to the transfer of land ownership caused by the state's expropriation of land based on the public interest and the authority and procedures prescribed by law. The right to land contractual management is therefore eliminated, and the owner of the land contractual management right has the right to request separate compensation in accordance with the law.

The obligations of the owner of the land contract management right include: one is the obligation to use the land in accordance with the law and the contract, the other is the obligation to use the land reasonably and protect the environment, and the third is the obligation to return the land and restore it to its original state.

Third, the extinction of the right to land contractual management ^[13]

The extinction of the right to land contractual management refers to the loss of the right to land contractual management based on legal provisions or contractual agreements. According to laws such as the Real Property Law and the Rural Land Contract Law, there are mainly the following situations: one is the expiry of the term of land contracting management rights, the other is the contractor to recover the contracted land in advance in accordance with the law, and the third is to adjust the contracted land in accordance with the law. Article 130 During the contract period, the issuer shall not adjust the contracted land. Due to severe damage to the contracted land due to natural disasters and other special circumstances, it is necessary to appropriately adjust the contracted cultivated land and grassland in accordance with laws and regulations such as the Rural Land Contract Law. Fourth, the owner of the land contractual management right voluntarily returns the contracted land. Acquisition of operating land.

Rural land system reform

The acquisition of rural land, the entry of collectively-operated construction land into the city, and the reform of the housing site system are major reforms deployed by the Third Plenary Session of the 18th CPC Central Committee. Since December 31, 2014, the Central Office and the State Office issued a document to start the reform. The pilot program has been launched in 33 counties (cities, districts). ^[14]

1. Improve the land acquisition system. There are three main tasks: one is to reduce the scope of land acquisition, the other is to standardize the procedures for land acquisition, and the third is to improve the reasonable, standardized, and multi-dimensional security mechanism for land-expropriated farmers. Judging from the practice of reforms in various places, the prominent change before and after the reform is that "land acquisition consultation and compensation and resettlement" are pre-programmed, that is, they must first reach a written agreement with the vast majority of the members of the village collective economic organization on compensation standards, etc. Land acquisition compensation and resettlement funds and social security costs must be implemented before the land acquisition process can be initiated to better protect the rights and interests of the land-expropriated farmers. Through the reform, the compensation methods have become more diversified, and the protection of land-expropriated farmers has been significantly strengthened.

2. Establish a collective business construction land access system. There are three main tasks: one is to improve the collectively-owned property rights system for construction land, the other is to define the scope and approach to market entry, and the third is to establish and improve market transaction rules and service supervision systems. The goal is to establish a market entry system with the same rights and prices, smooth circulation, and revenue sharing. Generally speaking, this pilot is advancing rapidly, and the corresponding institutional arrangements and rules have been gradually improved.

The first is to gradually realize the same land and the same price, and build a unified urban and rural land market. Take "same rights" as the premise of "same price", grant collective land use rights on construction land with the same power as state-owned construction land use rights, and operate in the same market. The land is basically the same, thus forming a land market integrating urban and rural areas. Through reforms, the acceptance of collectively-operated construction land by enterprises, banks and capital markets has increased significantly.

The second is to strengthen the land protection for enterprises, especially small and micro enterprises, and promote the integration and development of rural industries. Compared to state-owned construction land, collectively-operated construction land has the advantages of small land parcels, low cost, and fast acquisition, and is generally favored by small and micro enterprises and new industries and new formats.

The third is to manifest the value of rural land and increase the collective and farmers' income.

3. Reform and improve the homestead system

There are four main tasks in the reform of the homestead system: first, reform and improve the protection and acquisition methods of the rights of the homestead; second, explore the paid use system of the homestead; The goal is to establish a homestead system that is obtained in accordance with the law and is fair, saves intensive use, and voluntarily withdraws. Many places have taken this as a starting point and promoted the new development of rural development.

The first is to ensure that the peasants "have a place to live".

The second is to increase farmers' property income. Each pilot area actively explored the methods of mortgage, lease, and cooperative development of farm houses, and continuously demonstrated the property rights of housing sites.

The third is to promote the construction of the rural governance system.

In 2018, the Ministry of Natural Resources will, in accordance with the central requirements, combine the "three plots" of reform pilots to improve the policy of peasants' idle homesteads and idle farmhouses, and explore the "three rights" of ownership, qualification and use rights of homesteads under rights constraints We will implement the collective ownership of housing sites, guarantee the right of farmers to qualify for housing sites and the property rights of farmers 'houses, and moderately revitalize the right to use housing sites and farmers' houses. At the same time, we insist on not buying or selling house sites in violation of regulations and laws, strictly implementing land use controls, and strictly prohibiting the use of rural house sites to build villa complexes and private halls.