法学论文
The comparison of Land registration and Land recordation
作者：杜伟华 律师 时间：2012年07月10日
China’s land registration is different from American’s land
recordation, before I compare the two systems, I think it
is necessary to illustrate three types of land registration
in the world, so that I can analyze the registration and
recordation better.
1. Three types of registration system
The three mode of registration is: system of registration
of deed, system of registration of title, Torrens title
system.
1).The main point of system of registration of deed is that
land rights of access or change take effect by the parties
sign the contract, but there is no credibility. If not being
registered it cannot against the third person. It also shows
that the registration department is only give the registration
without substantive examination, this registration system is
a kind of public registration and change of registration with
human rights standards.
2).The main point of system of registration of right is that
land right of acquisition or change must be registered by the
authorities in accordance with legal procedures for the registration
and form of substantive review, confirm the losses and change of
right and then take effect. So under this registration mode the
covenant signed by two parties has no legal effect even cannot
against the third person. This land registration is also public
registration but doesn’t change the registration, which formulated
on real estate standard.
3).Torrens title system advocated that title certificate replace deed
certificate in order to ensure the reliable right and convenient to
transfer, no mandatory, can’t be cancel after registration, examined
to have confidence force. The biggest characteristic is granted land
ownership certificate. The registration department is liable for
compensation.
In order to compare the character of the three systems better, I
give a table following:
2. China’s land registration
China’s land registration has the character of both system of registration of title and Torrens title system, emphasis on the system of registration of title. The main character is as follows:
1). Registration is mandatory
Acquisition and change of land title has no effect without registration, land registration is requirement for land rights’ change and take into effect. <China’s land management law> the second chapter rule twelfth regulate: change land ownership and use purpose in accordance with the law should transact registration procedure of changing
2).Registration cannot be overthrow.
Registered land title cannot be overthrow, subject to legal protection, the bona fide third party who obtained land rights cannot be overthrown, cannot be returned. "PRC Land Management Law thirteenth stipulates:" the lawfully registered land ownership and land use right protected by law, no unit or individual shall infringe.”
3) Registration and examine substantiality
When Land registration authority examine the land registration application, not only to review the application whether have the form elements, but also to review whether the title or change conform to national relevant laws and policies.
4). Credibility of registration
China has the absolute credibility of land registration. Obligee applied, completed in accordance with a series of procedures, accept substantive examination, the registered land cannot be overthrow, which has the absolute credibility.
5).Register book resort to substance compile
The register book compile is base on land for standard, according to the land parcel as the order form. According to person is mainly reflected in the land door card.
6). Grant of land ownership and land right to use certificate
7).Dynamic registration
Land registration include not only initial registration but also land change registration.
8). Land registration does not include the ground building
and fixtures
Land registration doesn’t including ground houses
and other buildings and fixtures. This basically determined
by the land administrative departments and real estate
management departments systems.
3. American’s land recordation
1). United States ownership system of land
The United States land has three kinds of form of
ownership, named private ownership, state government
ownership and the federal government ownership. In addition,
federal land administration department also manage the
mineral resource in land.
2).Land register object
The United States land ownership is divided into three
parts: one is the underground right, including underground
mining right; the other is the authority on the ground; the
third one is the space right, including buildings plus layer
development and nearly sky through right. The three portion
of the right can be transferred separately. In general, the
government doesn’t intervene on how to use private land,
the federal government also doesn’t interfere on private
land business. All the legal recognition of private land are
registered in government, when land owners sell land ownership,
transfer of ownership can be realized through the change of
registration. The government managed private land mainly by
gain registration fees and providing planning guide.
3). Torrens registration system
Now more than 2/3 states in the United States adopted
the ownership registration system, New York and eleven states
implement Torrens registration system. The principle of Torrens
registration system is land ownership certificate itself that
registered certification of land ownership, which differs from
the land ownership registration system.
The Unite States adopt Torrens registration system has
mainly three purposes: one is cognizance the land owner through
the court; the other aspect is to establish the index system of land;
the third aspect is to make public record conclusive.
4. Conclusion
From the above passage, we can see that the main difference between
China’s land registration and Unite State’s land recordation is the
registered system. China adopt both system of registration of title
and Torrens title system, emphasis on the system of registration
of title, and Unite States adopt Torrens registration system to record
the land.
recordation, before I compare the two systems, I think it
is necessary to illustrate three types of land registration
in the world, so that I can analyze the registration and
recordation better.
1. Three types of registration system
The three mode of registration is: system of registration
of deed, system of registration of title, Torrens title
system.
1).The main point of system of registration of deed is that
land rights of access or change take effect by the parties
sign the contract, but there is no credibility. If not being
registered it cannot against the third person. It also shows
that the registration department is only give the registration
without substantive examination, this registration system is
a kind of public registration and change of registration with
human rights standards.
2).The main point of system of registration of right is that
land right of acquisition or change must be registered by the
authorities in accordance with legal procedures for the registration
and form of substantive review, confirm the losses and change of
right and then take effect. So under this registration mode the
covenant signed by two parties has no legal effect even cannot
against the third person. This land registration is also public
registration but doesn’t change the registration, which formulated
on real estate standard.
3).Torrens title system advocated that title certificate replace deed
certificate in order to ensure the reliable right and convenient to
transfer, no mandatory, can’t be cancel after registration, examined
to have confidence force. The biggest characteristic is granted land
ownership certificate. The registration department is liable for
compensation.
In order to compare the character of the three systems better, I
give a table following:
  main pointmode |
enforcement |
examination |
object |
Title certification |
Register book compile |
counterforce |
credibility |
compensation |
|
system of registration of deed |
no |
Form examine |
deed |
no |
Person compile |
yes |
no |
Commonly no |
|
system of registration of title |
yes |
Essential examine |
title |
no |
Substance compile |
yes |
yes |
Nation’s compensation |
|
Torrens title system |
no |
Essential examine |
title |
yes |
Person compile |
yes |
yes |
Insurance compensation |
2. China’s land registration
China’s land registration has the character of both system of registration of title and Torrens title system, emphasis on the system of registration of title. The main character is as follows:
1). Registration is mandatory
Acquisition and change of land title has no effect without registration, land registration is requirement for land rights’ change and take into effect. <China’s land management law> the second chapter rule twelfth regulate: change land ownership and use purpose in accordance with the law should transact registration procedure of changing
2).Registration cannot be overthrow.
Registered land title cannot be overthrow, subject to legal protection, the bona fide third party who obtained land rights cannot be overthrown, cannot be returned. "PRC Land Management Law thirteenth stipulates:" the lawfully registered land ownership and land use right protected by law, no unit or individual shall infringe.”
3) Registration and examine substantiality
When Land registration authority examine the land registration application, not only to review the application whether have the form elements, but also to review whether the title or change conform to national relevant laws and policies.
4). Credibility of registration
China has the absolute credibility of land registration. Obligee applied, completed in accordance with a series of procedures, accept substantive examination, the registered land cannot be overthrow, which has the absolute credibility.
5).Register book resort to substance compile
The register book compile is base on land for standard, according to the land parcel as the order form. According to person is mainly reflected in the land door card.
6). Grant of land ownership and land right to use certificate
7).Dynamic registration
Land registration include not only initial registration but also land change registration.
8). Land registration does not include the ground building
and fixtures
Land registration doesn’t including ground houses
and other buildings and fixtures. This basically determined
by the land administrative departments and real estate
management departments systems.
3. American’s land recordation
1). United States ownership system of land
The United States land has three kinds of form of
ownership, named private ownership, state government
ownership and the federal government ownership. In addition,
federal land administration department also manage the
mineral resource in land.
2).Land register object
The United States land ownership is divided into three
parts: one is the underground right, including underground
mining right; the other is the authority on the ground; the
third one is the space right, including buildings plus layer
development and nearly sky through right. The three portion
of the right can be transferred separately. In general, the
government doesn’t intervene on how to use private land,
the federal government also doesn’t interfere on private
land business. All the legal recognition of private land are
registered in government, when land owners sell land ownership,
transfer of ownership can be realized through the change of
registration. The government managed private land mainly by
gain registration fees and providing planning guide.
3). Torrens registration system
Now more than 2/3 states in the United States adopted
the ownership registration system, New York and eleven states
implement Torrens registration system. The principle of Torrens
registration system is land ownership certificate itself that
registered certification of land ownership, which differs from
the land ownership registration system.
The Unite States adopt Torrens registration system has
mainly three purposes: one is cognizance the land owner through
the court; the other aspect is to establish the index system of land;
the third aspect is to make public record conclusive.
4. Conclusion
From the above passage, we can see that the main difference between
China’s land registration and Unite State’s land recordation is the
registered system. China adopt both system of registration of title
and Torrens title system, emphasis on the system of registration
of title, and Unite States adopt Torrens registration system to record
the land.
