Abstract
Jus in re aliena encompasses mortgage, to which the system of bona fide acquisition can also be applied. The judgment of whether housing mortgages constitutes bona fide acquisition shall be analyzed in light of the general theory of bona fide acquisition and the actual situation of the case. The core element for the determination of bona fide acquisition is bona fide acquisition of mortgage by a third party with compensation. When housing mortgages is in conformity with the elements of bona fide acquisition, such bona fide acquisition may constitute a deterrent to cancellation of housing registration. Cancellation of the housing registration will affect the validity of the mortgage registration, resulting in the inability to realize the mortgage. Therefore, in the event of obtaining the mortgage in such bona fide acquisition, it shall be adjudicated that the act of housing registration is illegal, and the validity of the housing registration shall be retained.
Collegial panel judges of Supreme People’s Court for re-trial: Xiong Junyong, Cao Gang, Gong Bin (Written by: Xiong Junyong and Niu Yanjia, Supreme People’s Court; Translated by: Li Jinyan).
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- 1.
In the registration of real property rights, the control of the examination scale by the registration department is actually the issue of whether the registration institution conducts substantive examination or formal examination of the registration application submitted by the applicant. Since both of the Real Right Law of the People’s Republic of China, entering into force on October 1, 2007, and the Housing Registration Measures, coming into force on July 1, 2008, do not expressly provide this issue, but exclusively specify the specific liability of registration agencies in different situations. Therefore, the current mainstream view is that differences in registration examination standards should be shelved. Housing registration agencies mainly conduct formal examination of registration applications, but they should fulfill reasonable and prudent obligations. If reasonable doubts about “consistency” and “conflict on rights” in registration conditions provided in Article 20 of the Housing Registration Measures are found, substantive examination should be conducted on the doubts.
- 2.
Article 81 of the Housing Registration Measures stipulates that the housing registration authority has the power to revoke the original housing registration, withdraw the housing ownership certificate or registration certificate, or announce the cancellation of the certificate.
- 3.
The bona fide acquisition system is to solve the problem of protecting the trust interests of bona fide third parties (assignees) without the right to dispose of them. Generally speaking, a bona fide acquisition must be in conformity with the following considerations: (1) the transferor has no right to dispose of it; (2) the transferee was in good faith when accepting the real property or personal property; (3) the property is transferred at a reasonable price; and (4) the transferred real property or personal property in the need of registration pursuant to the law has been registered, and those in no need of registration have been delivered to the transferee.
- 4.
Article 74 of the Administrative Procedure Law of the People’s Republic of China stipulates that in any of the following circumstances, people’s courts shall make judgment to confirm the violation of the law, but shall not revoke the administrative act: (1) The administrative act shall be revoked according to law, but revocation will cause great damage to the interests of the state and the public;…
- 5.
For example, Beijing No. 2 Intermediate People’s Court, in its administrative judgment (No. 562 [2017], Final, Adm. Division), held that in the event of any evidence proving false application materials for registration of housing ownership transfer, the registration shall be revoked. The revocation judgment of the people’s court does not necessarily result in the mortgage right of the third party to the house not being realized. Therefore, the registration in housing mortgages fails to constitute a legal obstacle to the revocation of the ownership registration. Judgment by Beijing No. 3 Intermediate People’s Court (No. 754 [2017], Final, Adm. Division) held that the mortgage is a real right, and the legal binding of revocation of the Property Ownership Certificate does not affect the binding force of the mortgage in the event of lawsuit brought by the parties against the Loan Mortgage Contract of the civil basis of mortgage registration without support from the court and the legal mortgage registration made by the housing registration authority.
- 6.
In general, the consideration paid when the house is mortgaged differs from that paid when the house is transferred, and the consideration paid by the mortgagee is often less than the value of the house. Where the false housing registration is cancelled and the validity of the mortgage registration is retained, the residual value of the house will still belong to the original owner of the house after the mortgagee fulfills his mortgage, and the original owner can be protected to the maximum extent.
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Xiong, J., Niu, Y. (2020). Huang X (A) and Huang X (B) v. the People’s Government of Shunde District, Foshan, and National Land and Civil Construction Bureau and Water Conservancy Bureau of Shunde District, Foshan (Administrative Registration)—The Bona Fide Acquisition of Mortgage Constitutes an Impediment to the Cancellation of Housing Registration. In: Selected Cases from the Supreme People’s Court of the People’s Republic of China. Library of Selected Cases from the Chinese Court. Springer, Singapore. https://doi.org/10.1007/978-981-15-0342-9_39
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DOI: https://doi.org/10.1007/978-981-15-0342-9_39
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