2, the applicable law review

At present, the registration authority issued a legal basis for housing all of the applicable mainly is the "City real estate management law". In addition, the "PRC security law", the Ministry of construction "City real estate collateral management approach", "city housing management authority in the registration procedures", the "city of private housing regulations" and other laws, and regulations on housing for the initial registration, change of registration, transfer of registration, his right registration and registration procedures aspects of the provisions, are people's court review review property registration law is legitimate.

3, registration procedures, review

"Measures" management city housing management authority registration simply defined acceptance, review, approval and announcement, four links of certificates, but in practice, the complexity of the situation, and every step needs a specific operating rules. Because the law does not make specific provisions, created a lot of controversy in practice. For example, a "one room two cards", a view that registration procedures, in has not withdrawn before the circumstances permit issued after the license should be revoked license, to resolve disputes, the card before; a view that should review what a person of real estate real right, and then decided to where a certificate revocation. In addition, which belongs to the illegal procedure, there are disputes which belongs to procedural flaws. One point of view, as long as the ownership status of the registration error free, procedural issues should be regarded as flawed; a kind of viewpoint thinks, whether illegal procedure should be the actual situation according to different registration act and.

We believe that, in the existing legal norms on the registration procedures are not clear, specific provisions of the circumstances, we can only give full play to the initiative, according to the circumstances of the case, properly handle each real estate registration administrative cases. Note: not because they do not explain action and prosecution deadline that registration acts violating the legal procedure and shall be revoked, this is a special license issuing behavior decision.

(four) registration certification crossover act and civil

Due to the real estate registration dispute between the parties is a kind of civil legal relationship or third people registered dispute, leading to the registration office registration act. The essence of the dispute between the administrative relative person and the third person, the reason to bring an administrative lawsuit in the registration authorities confirmed the civil legal relationship. In these cases, the civil legal relation and the administrative legal relationship together, once the parties filed disputes civil rights, restricted by the registration act, in the trial of civil cases judges, often advocated in administrative proceedings, because according to "several provisions of the Supreme People's court" on the civil evidence of the provisions of article seventy-seventh, the state organ according to the certificate authority the documents formulated by force is larger than other documentary evidence. They think, as long as the real estate registration, the right person on the property rights according to law. To deny their rights, must cancel the registration act. Administrative trial by the nature of authority restriction, but not on the property rights of ownership and the authenticity of the property transfer, mortgage registration and the effectiveness of the contract to make the final determination. Because the effect of civil judgment is the civil trial functions. On the basis of civil rights and civil law cases, administrative adjudication either to maintain or cancel the registration of decision behavior is not appropriate. In practice, because of the cases of civil and administrative two trial has not clear, will inevitably make the parties into circulation processing cycle.

We believe that, if the legality of a specific administrative act is decided by the effectiveness of civil behavior, the review of the legality of administrative actions depend on the civil case judgment, shall rule to suspend the administrative proceedings, the civil action after the end of recovery of administrative litigation. However, this approach is not conducive to saving the lawsuit cost and improve the efficiency of trial, is not conducive to safeguarding the legitimate rights and interests of the parties and the social stability and orderly. At present, the best solution is to establish the administrative incidental civil litigation, administrative litigation with incidental registration in civil ownership in property disputes. China's current administrative procedure law hasn't stipulated the incidental civil action system of administrative litigation, the Supreme People's Court promulgated the "on the implementation of 'of the people's Republic of China Administrative Procedure Law' interpretation of several issues" sixty-first only to the administrative litigation with incidental civil action to make a rough requirements, how to operation did not make specific provisions, pending further exploration.

(five) on the property registration and administrative litigation judgment mode

The registration authority issuing behavior, such as the facts are clear, the evidence, legal procedures, applicable law is correct, should adopt what decision? Some people think that, should use the confirmation decision. The reason is, the registration act is the final documents issued by the registration authority that all warrants or him heading to reflect its potency, carrier of the documents is a specific administrative act of registration authority, and certificates for the placement of the dispute, the effectiveness of the documents to confirm the legal or effective. Some people think that should be rejected petition judgment instead of the maintenance decision. Because the registration authority of the civil legal relationship is not entitled to review, probably registration behavior will be the basis of existence and lost because of invalid civil legal relationship. If the court in judicial review standard decision maintains the registration authority behavior, will bring future civil trial denied civil legal relationship of real property after the implementation of the administrative organs, or to correct the registration behavior obstacles.

We believe that, in this case, or by the maintenance decision is appropriate. For determining the current administrative procedure law standard administrative judicial review is the specific administrative act is legal, rather than determine the litigation the plaintiff's request not court support, so use dismissed plaintiffs request instead maintain verdict against administrative procedure law on the principle of image examination. With the confirmation decision is not appropriate, because in order to confirm the decision only in the specific administrative act as illegal or invalid truly reflects the relief function.

(six) on the property registration and administrative compensation

"City housing management authority registration management measures" provisions of article thirty-seventh: "due to faults in his work, staff registration organ causes registration is improper, cause obligee to get pecuniary loss, the registration organ liable for compensation for direct economic loss of the parties." Because there is no complete real estate registration certification of the compensation system in our country, so in practice, there are some of the following questions:

1, registration compensation liability

In practice, the registration organ should assume liability to pay compensation, and compensation standards, the scope of the controversial. A kind of opinion thinks, registration can not cause the issue of compensation. Because the registration act more like a service behavior, the only charge a service fee of little require registration authority for properties such a large property liability is not fair, the parties to the economic losses can be solved through civil way. A kind of opinion thinks, influence the registration act on the rights of the parties, the registration organ shall strictly examine each application for registration, the registration organ work negligence causes losses to a party shall be liable for the illegal exercise of power of nature, must bear the responsibility. In addition, some people advocate the registration authority is the form of the examination of the application for registration review, for the registration errors caused by the applicant conceals the true situation, the registration organ shall not bear the liability for compensation, some people advocate the authenticity of the registration authority has the obligation to review the application materials, lax review shall be liable for compensation.

We believe that, if the registration authority intentionally, fault or neglect lead to registration errors, deal with the direct damage to people responsible for compensation. If the applicant to provide the materials have obvious signs of deliberately provides false materials or concealing the true situation, the registration authority can be found due to negligence is not found, leading to registration errors, direct losses of registration of real rights, should compensation. The applicant because of its subjective malice without compensation. Such as the registration authority has all the attention obligation is still unable to find the false or conceal the situation, the direct losses of the real rights of people without compensation, the actual loss of the real rights of people can be resolved through other means.

2, about the liability of order problem

There are three kinds of views in practice: (1) a request for the party put forward the administrative compensation, the registration organ shall compensate all losses prior to tort civil recovery. (2) by the infringee choice in the administrative compensation and civil compensation. (3) the parties through other ways to claim, when other claim means is still unable to obtain compensation, may bring an administrative compensation lawsuit, the registration organ shall bear the liability for compensation.

We agree with the third opinion. Because of its reasonable factors, the state compensation system is a kind of final relief system, only when the victim is unable to obtain the relief of their rights through other means, through compensation to state compensation way. Due to the infringement of the rights of the only one, when he received compensation through other ways and means, can't again through the national compensation approach to the infringement of the registration authority for compensation, otherwise, there will be many damages to the same situation right.

Trial three, real estate registration administrative litigation cases countermeasures and suggestions

(a) continue to raise awareness of the importance of real estate registration trial of administrative cases

With the rapid development of China's market economy, the real estate transaction is becoming a new economic growth point in our country, the real estate market is gradually mature. Civil rights awareness and legal concepts of continuous improvement, judicial guarantee registration administrative behavior in this important property of real estate are actively using the law to seek their own interests, the real estate registration administrative cases showed a rapid rising trend. However, a series of current our country real estate registration system has lagged behind, the real estate registration administrative trial work of great difficulty. Therefore, we should treat every case to trial, it is necessary to fully protect the people's legitimate rights and interests of property rights, fair definition of registration duties, obligations, the unification of legal effect and social effect to.

(two) to accelerate the legislation, establish and perfect the scientific property registration system

As soon as possible and improve relevant laws, regulations and rules of the unified real estate registration, exist in the confusion in practice, is the fundamental way to solve the current real estate registration administrative trial work problems. The National People's Congress promulgated the "draft" in the property law, made the basic stipulation on the registration system of immovable property, such as the jurisdiction of registration, registration institution duties, objection to the registration and registration system, registration fault liability, but these Provisions are still many uncertainties, can not solve the problems encountered in practice further, to the laws and regulations. Such as position and setup, registration registration and degree, scope of authority to review the application materials, the perfect registration announcement procedure registration authorities shall assume the liability of compensation standards and so on. The lack of administrative procedure law is caused by many factors. Real estate registration administrative litigation, administrative law can expect it as soon as possible, to provide a clear legal basis for the trial of such cases.

(three) shall hear the real estate registration administrative litigation cases, give full play to the functions of court trial

1, the correct understanding of nature of real estate registration act, grasp the trial of real estate registration administrative litigation law. Real estate registration is only recognized acts of civil behavior, rather than to the civil dispute handling behavior. Grasp the nature of real estate registration act, in order to further grasp the trial of real estate registration administrative litigation law.

2, make clear to the real estate registration behavior standard of judicial review. Justice is the ultimate relief channels, the court is the last barrier of justice, so the review of obligations and competence of the courts should be higher than the registration authority.

3, pay attention to the protection of the legitimate rights and interests of the administrative counterpart. Some real estate registration administrative cases relating to immovable property amount is large, sharp contradictions, handled properly, it will affect social stability, for each piece of such cases should be from the legislative purpose, legal principle, the social effect comprehensive consideration, really make the administrative judicial fairness, justice.

4, correctly handle contradictions exercise judicial functions and support registration authority according to law administrative. Because the real estate registration related to lack of legal provisions, abstract, simple, and everyone on the legal understanding of divergence is large, unavoidable registration authority conclusion and the court recognizes the existence of different. On the one hand, we should resolutely correct the erroneous views registration authority, on the other hand, to further strengthen the communication with them, through put forward judicial proposals, symposium, jointly organized lectures, to reach a consensus on the legal understandings and handling the cases, the administrative power and the judicial power of harmony and unity.

(four) to strengthen research and guidance, to improve the level and quality of the trial

The current laws and regulations, registration and operation specifications did not make specific provisions for real estate, it is difficult to grasp in practice. Therefore, the superior court to strengthen investigation and research, have a definite object in view of the lower court to do some business guidance and training, improve the judicial personnel of the lower court's professional quality and ability of handling a case. The court also to be good at summing up experience in practice, find ways to run the property registration, administrative litigation.