The legislative background and necessity of property law, and its highlights.

First, the legislative background of the drafting of property law

The content of the civil code to be promulgated in China may include five parts: subject, contract, property right, creditor's right and responsibility. The compilation of real right is the core and foundation of the compilation of real right. To this end, the the National People's Congress Standing Committee (NPCSC) Law Commission set up two working groups headed by Liang Huixing and Wang Liming to draft the property law. On March 6, 2007, the Fifth Session of the Tenth National People's Congress passed the Property Law by a high vote. This marks a key step in the birth of China's Civil Code.

1, the realistic background of the formulation and implementation of the property law

(1) needs of market economy development

The drafting, legislation and implementation of any law must have its inherent multiple reasons. The formulation and implementation of property law is mainly due to the development of social economy. People are very concerned about the ownership and utilization of property, so it is necessary for people to regulate their social wealth by law. People's right to things, that is, property rights, is the legal expression of the relationship between people in a particular society, and it is the exclusive right of the subject recognized by law to control things according to law. Law is the regulator of the real society. People's different social status, property ownership and other practical problems are all confirmed by the state's coercive power. Property law is a basic civil law to adjust the property relations arising from the ownership and use right of things, including defining the property rights of the state, the collective, the private and other obligees and their protection.

② The need of legal perfection.

The formulation and improvement of China's civil legal system is gradually advancing. Since 1980s, with the General Principles of Civil Law as the basic starting point, the unified contract law was formulated and implemented at the end of 1990s, and other legal systems related to marriage and family inheritance, intellectual property legal systems, related tort legal systems and judicial interpretations were successively formulated and implemented, which made the formulation and implementation of property law particularly urgent. It can be said that the formulation and implementation of the property law coincided with the right time.

(3) the needs of practical legal problems.

At the same time, with the development of social economy, the legal relationship of property between people is becoming more and more complicated, many of which involve the legal relationship of ownership and possession of things, and a standardized and complete legal system of property rights is urgently needed. In reality, there are many legal disputes involving property rights, and a powerful property law is urgently needed to protect the rights and interests of legal persons. The formulation and implementation of the Property Law has solved many practical problems of law application.

2. Academic background of the drafting and formulation of property law.

As the preparatory work for the drafting of the property law, NPC Law Committee entrusted Professor Liang Huixing from China Academy of Social Sciences and Professor Wang Liming from China Renmin University to write the expert proposal draft of the property law. On this basis, NPC Law Committee formed a draft property law in May 20001year and submitted it to experts for discussion. At the suggestion of experts, it was completed at the end of the same year, and the draft property law was published for comments in June 5438+ 10, 2002.

The Property Law has broken the legislative record of our country, and it is the most frequently deliberated law in the legislative history. It is one of the 12 laws that solicit opinions from the public. In the process of public consultation, it has caused a wide range of debates across the country, involving related political issues. Some experts believe that the draft property law does not adhere to the basic economic principles of socialism and violates the Constitution. Liang Huixing, Wang Liming and other civil law experts in the drafting group expressed different views: First, the recognition and equal protection of legal property are the norms of property law. Second, the property law is a civil law, not a constitution. There is no need to say that state property is inviolable because the constitution has stipulated it, and there is no need to repeat the property law; If this provision is repeated, it is easy to cause misunderstanding. Third, the polarization between the rich and the poor is a social reality problem, not a property law problem. This argument is supported by most people. Clear the confusion in the hearts of the people. The legislative process of property law continues to move forward.

As the property law is about to be deliberated and passed, the "best nail house in history" in Jiulongpo District of Chongqing comes at the right time, and the problem of house demolition and nail house has aroused great concern in the whole country. Legal experts from all sides have their own opinions on this, and an academic debate about the property law and the "nail house" of house demolition has thus begun. The legal principle of "State, collective and private property rights and the property rights of other obligees shall be protected by law and shall not be infringed by any unit or individual" in the property law has violently collided with the reality in life, which has made the broad masses of people consciously or unconsciously accept the baptism of property law education. The principle of "citizens' legitimate private property is inviolable" in the Constitution and the concept of "private property rights are protected by law" in the Property Law are further deeply rooted in the hearts of the people.

Second, the necessity of property law

Why is there a property law?

In cities, it is not uncommon for homeowners and property companies to quarrel over the ownership of stairs, garages and other spaces.

-In rural areas, some farmers have disputes due to unclear ownership of their homesteads, and have forged hatred for generations.

According to the data, the number of real estate disputes accepted by Beijing courts in 200 1 year reached15,000, and it showed an increasing trend year by year.

Not in the legal relationship of real right. Some members believe that the socialist market economy and social wealth are not familiar with the concept of property rights. In life, the number of people has been increasing, and the people are getting richer. With property, ordinary people naturally care about their own property safety and their own interests, and there will be more property disputes. The specific law applicable to solving these disputes is the Property Law. You can set up a point, you can stop fighting, and people can have permanent production.

The constitutional amendment strengthens the protection of citizens' legitimate private property, and emphasizes that the state should make reasonable compensation for land and houses requisitioned. Wang Liming believes that the promulgation of property law is the concretization of constitutional principles. Clearly writing the rights of ordinary people into the code is conducive to stopping those who trample on the property rights of ordinary people. "Property law and contract law are the two pillars supporting the market economy." Professor Wang Liming quoted a foreign economist as saying that it is necessary to formulate a property law.

Tang Dehua: The formulation and promulgation of the Property Law has at least four important meanings. First, it has effectively promoted the process of governing the country according to law and building a socialist country ruled by law. It can also be said to be a major move, or a landmark law. Second, the property law maintains China's basic economic system. China's basic economic system has been clearly stipulated in the constitution, which is a basic economic system with public ownership as the main body and multiple economies developing together. This is the meaning of the second aspect. Third, I think this is a necessary law to maintain the order of the socialist market economy. As we all know, we are building a socialist market economy and gradually connecting with the international community. In the process of establishing a market economy, a perfect legal system is needed, and one of the most important laws should be said to be the property law. The fourth aspect, which I think is also very important, is that the property law is related to or involves the rights of citizens, legal persons and other organizations. Some people say that property law belongs to property ownership, and property ownership is very important to everyone, to every enterprise or legal person or organization, but to whom does this financial right belong? This is very important. If the contract law is the transaction law, then the property law is the ownership law, and the ownership law is more important than the education law in a sense. Everyone knows the importance of contract law. After years of practice, it has proved its role in economic life and social life. In the course of more than ten years, the protection of the rights of citizens, legal persons and other organizations is bound to be more important and prominent. Therefore, I think it is of great significance to say at least that the promulgation of the property law has four aspects. So people are very concerned about this law.

Iii. Interview with Highlights of Property Law

[Keywords:] real estate registration system

In whose name the house is registered, it is whose property right.

[Case] Ms. Zhang and her husband bought a commercial house in the Olympic Sports Center. At that time, due to various reasons, the property owner only registered the house funded by the husband and wife in the name of the underage daughter. Ms. Zhang is not clear about how to determine the owner of this house.

[resolution] according to the provisions of the property law, the property rights of real estate shall be subject to a strict registration system, and the registration shall take effect. Without registration, it will not take effect, that is, registration will have property rights, and without registration, there will be property rights. Although this house was purchased by Ms. Zhang and her husband, they voluntarily registered the ownership of the house in the name of their minor daughter. In fact, they disposed of their property, and their minor daughter was the only owner of the property. Mr. and Mrs. Zhang are neither obligees nor obligees.

Of course, there is an exception, that is, the real estate purchased by one or both spouses during the marriage relationship, even if it is registered in the name of one person, should be recognized as marital property as long as there is no special agreement between the spouses on the property. Because this belongs to "other relevant laws have special provisions on property rights, in accordance with its provisions."

Without registration, the house does not belong to you.

[Case] Three years ago, a close friend of Ms. Li wanted to sell real estate. She negotiated with this friend and bought it at a price of 6.5438+0.3 million yuan. Subsequently, Ms. Li moved in with her family after paying her friend 65,438+10,000 yuan, and lived for three years. In the past three years, the balance of 30 thousand yuan has not been paid, and the other party has never urged it. Ms. Li also failed to pay off in time because of tight money. At the same time, Ms. Li did not ask the other party to cooperate with the transfer registration. This matter dragged on for three years. Some time ago, Ms. Li suddenly received a notice from a friend that she was unwilling to sell the house and returned the 654.38+10,000 yuan that Ms. Li bought three years ago to her. At present, the house price has doubled, and this friend has sold the house to others for 260 thousand. Does Ms. Li have the right to claim rights to this house?

[Resolution] Article 15 of the Property Law stipulates: "The contract concluded between the parties on the establishment, alteration, transfer and elimination of the real right of immovable property shall take effect upon the establishment of the contract, except as otherwise provided by law or the contract; Failure to register property rights does not affect the validity of the contract. " According to the original intention of the property law, the "contract effect" here only refers to the effect of creditor's rights, and does not refer to or include the effect of property rights. In other words, China's property law distinguishes the cause behavior, basic behavior (contract) and establishment behavior (real estate registration) of the establishment of property rights, which must be possessed at the same time in the sale, especially in the registration of real estate, before the establishment, alteration and transfer of property rights can take effect. Although Ms. Li signed a house purchase contract with her good friend through negotiation, and paid off most of the house purchase price, the house is still owned by Ms. Li's friend because the transfer registration (transfer registration) has not been handled, and Ms. Li's friend still has the right to dispose (sell) the property under her name. Ms. Li does not enjoy the real right of the house. She can only ask her good friend to bear the liability for breach of contract such as compensation for losses in accordance with the purchase contract.

Notice registration in advance to prevent "multiple marriages in one room"

[Case] In May 2006, Miss Qin bought a house of 128 square meters in a new development. After signing the house sales contract with the developer and paying the down payment, the developer failed to deliver the house as agreed in the contract. Last week, when Miss Qin went to negotiate again, she found that the developer had sold the house to her sales girl without authorization, and the contract had been put on record, and the other party had been renovated and moved in.

[Analysis] The Property Law has created a notice registration system to further improve the registration of real estate, which can effectively prevent "one room selling more", that is, after the parties sign an agreement on buying and selling houses or other real estate rights, they can apply to the registration agency for notice registration according to the agreement; After the advance notice registration, if the obligee without advance notice registration agrees to dispose of the real estate, the real right effect will not occur. There have been many similar cases before, where buyers and sellers signed sales contracts, paid part of the house price and waited for the issuance of property certificates. In the meantime, the seller resold the house to others and gave them the title certificate. As a result, two buyers "robbed the house" and started a lawsuit with the seller.

In the future, after signing the sales contract with the seller, the buyer can register in advance at the house registration agency as agreed, and then register the property right. As long as the purchaser has registered the advance notice, if the seller sells the house to others, this "additional sale" will have no effect, that is, the house can only be sold to the purchaser who has registered the advance notice, and no one else can obtain the property right of the house. This can effectively avoid "one woman and two marriages". It should be noted that within 3 months from the date of registration, the registration of real estate property rights should be carried out, otherwise the advance notice registration will be invalid.

If the registration is wrong, it shall apply for correction; If you don't agree to register, you will be prosecuted within 15 days.

[Case] Xiao Wang and his lover Xiao Li decided to buy a house together, and they registered together, but later found that only Xiao Li's name was registered on the real estate license. Xiao Wang is in a hurry. How should he defend his rights?

[Resolution] The Property Law has also newly established a correction registration system and an objection registration system, with the purpose of correcting registration errors in time and preventing damage. Correction registration system means that the obligee and interested party may apply for correction registration if they think that the items recorded in the real estate register are wrong. If the obligee recorded in the real estate register agrees to make corrections in writing or there is evidence to prove that the registration is indeed wrong, the registration institution shall make corrections. In this case, the small application corrects the registration. If Xiao Li agrees to make corrections in writing or Xiao Wang has evidence to prove that the registration is indeed wrong, the registration authority shall make corrections.

If Xiao Li has any objection to the correction, Xiao Wang Can applies for objection registration. Objection registration is equivalent to "temporary freezing", and its effect is to make the original real estate registration lose its correct presumption. However, it is particularly important to note that once the objection is registered, it must be prosecuted within 15 days, otherwise it will be invalid.

[Keywords:] Club ownership needs to be further clarified

Article 73 of the Property Law stipulates that the roads within the building division are owned by the owners, except those belonging to urban roads. The green space in the building division belongs to the owner, except the urban public green space or the express individual. In addition to roads and green spaces, other public places, public facilities and property services within the building division belong to the owners.

Liu Kexi said that the ownership of clubs, whether owned by developers or owners, is one of the most controversial issues in the legislation of property law. He introduced that the previous draft property law had stipulated the ownership of the clubhouse, but it was very controversial. Therefore, after the symposium on the draft property law held by the Law Committee of the National People's Congress and the Law Committee of the National People's Congress Standing Committee (NPCSC) on August 29th, 2005, until the "Seventh Deliberation", this issue has been avoided. The content of "other public places and public facilities" belonging to the owner was added after the "draft submitted to the National People's Congress for deliberation". However, what is the relationship between the abstract expression of "other public places and public facilities" and the specific concepts such as "clubs in architectural divisions" and "civil air defense projects"? Can it be determined as a genus, that is, can the latter two belong to the first two? Judging from the provisions of the property law, the general principle and direction are beneficial to the owners. But at present, we can't simply think that clubs and civil air defense projects belong to the owners.

Liu Kexi believes that this issue needs to be further improved and clarified in future laws, administrative regulations, legislative interpretations and judicial interpretations.

[Keywords:] garage ownership

Parking spaces and garages are not owned at cost.

Property law stipulates that: within the building division, the parking spaces and garages planned for parking cars should first meet the needs of the owners; Within the building division, the ownership of the parking spaces and garages planned for parking cars shall be agreed by the parties through sale, gift or lease; Parking spaces that occupy roads or other venues owned by the owner for parking cars shall be owned by the owner.

It is understood that at the beginning of the drafting of the Property Law, it was intended that whether parking spaces and garages entered the cost was the only basis for owners or developers to define ownership. Liu Kexi believes that the system design of "ownership by cost" is unscientific and unfavorable to the owners. Because what is "cost" is actually extremely difficult to define, and the owners have no information such as the development cost of commercial housing.

In addition, Liu Kexi believes that the starting point and legislative intention of "satisfying first" in the property law are good, but it is not clear, specific and operable in practice. Moreover, this regulation does not take into account that the necessary public parking spaces and visitor parking spaces are owned by the owners, leaving a certain "hidden danger" to public safety.

The new parking space is new, and the old parking space is still in the old way.

Liu Kexi said that the provisions on parking spaces and garages in the Property Law only apply to newly built parking spaces and garages after June 65438+1 October1day, 2007, but not to previously built parking spaces and garages. As for what is "parking spaces and garages newly built after June 65438+1 October 20071",there are also differences in understanding. Some people think that as long as the parking spaces and garages are built after June 65438+ 10/2007, the property law will apply, regardless of the time of construction and project approval. Others think that, strictly speaking, newly-built parking spaces refer to the parking spaces built after receiving planning permits and construction permits on June+10/October 1 June 65438.

Regarding how to deal with the problems left over from history, such as "reformed houses" sold before the promulgation and implementation of the Property Law, houses in old residential areas, parking spaces and garages in residential areas, Liu Kexi said that the Law Committee of the National People's Congress made the Report on the Deliberation Results of People's Republic of China (PRC) Property Law (Draft) on March 12, 2007.

Liu Kexi believes that the provisions of the Property Law do not apply to the parking spaces and garages left over from history, but to the relevant local laws and regulations before the Property Law, or according to the agreement at that time. The "agreement at that time" here is a fairly broad concept with no legal restrictions. For example, the ownership of parking spaces and garages in some old residential areas in Nanjing should follow the old method, that is, the "Several Provisions on the Transfer of Attached Houses of Commercial Housing" issued by Nanjing Housing Management and Price Department in June 5438+February 65438+May 2004. According to this regulation, the indoor parking spaces and all outdoor parking spaces in the community, which are equivalent to 15% of the total standard configuration, are owned by the owner, and the rest are owner-only parking spaces, which can be sold by real estate development enterprises.

[Keywords:] land use rights

The right to use is automatically renewed, and there is no provision for charging.

The first paragraph of Article 149 of the Property Law stipulates: "When the term of the right to use residential construction land expires, it will be automatically renewed."

Liu Kexi believes that this provision of the Property Law is the highest crystallization of the wisdom of contemporary China people's civil law, the highlight of the Property Law, and the most favorable provision for the broad masses of the people. What is "automatic renewal"? Liu Kexi explained that the time limit will be automatically extended without the user's application or the approval of the government and its departments. How long can it last? Unlimited time limit: 100, the house will not fall down, 100, take it for granted and use it with confidence; If you don't fail for 300 years, you can use it boldly for 300 years. 100, should it be nationalized after 300 years? Not necessarily. We will study it then.

In addition, Liu Kexi introduced that regarding whether to charge after "automatic renewal", the fourth and fifth drafts all proposed that after the renewal of the construction land use right, the construction land use right holder should pay the land use fee; The renewal period, standard and payment method of land use right shall be stipulated by the State Council. Starting from the sixth draft, this provision was deleted, and there was no such content when it was adopted. This is mainly about whether to collect land use fees, how much and how to collect them (whether to collect them for 70 years or annually, whether to collect land use fees, land taxes, property taxes, etc.). ), there is no in-depth discussion and no mature experience, and this provision is related to the vital interests of the broad masses and needs to be treated with special caution, so it is not appropriate to make provisions in the property law. At that time, we can study it carefully according to the actual situation of China's economic development.

It is worth mentioning that the second paragraph of Article 149 of the Property Law stipulates: "When the term of non-residential construction land use right expires, it shall be renewed according to law." Liu Kexi said that from this provision, it can be seen that non-residential houses do not enjoy the special protection of "automatic renewal" of houses, and the provisions of existing laws and administrative regulations still apply.

There is no uniform provision for disputes over "small property houses"

According to the Property Law, homestead refers to collectively owned land occupied and used by members of rural collective economic organizations. After the Property Law comes into effect, "homestead" and its "homestead use right" will become the special names of the land occupied by rural villagers' houses and their rights.

Liu Kexi said that whether the transfer and mortgage of farmers' housing and the right to use their homestead can be released is a hot and controversial issue in the process of formulating the property law, and there have been different opinions.

It is understood that the Property Law has deleted relevant provisions from the draft five. Liu Kexi said that the Property Law has no new provisions on the right to use the homestead, and in principle, the existing provisions still apply. On the issue of transfer and circulation, it adopts the same scheme and attitude as the contracted management right of land, that is, from a national perspective, the conditions for releasing the contracted management right of land and the transfer and mortgage of the right to use homestead are not yet mature. In order to maintain the existing laws and the current policies of the state on rural land, and to leave room for amending relevant laws in the future, the Property Law stipulates: "The acquisition, exercise and transfer of the right to use the homestead shall be governed by the Land Management Law and other laws and relevant state regulations."

Liu Kexi said that at present, there is no uniform regulation on the handling of so-called "small property houses", and the practices in the whole country are inconsistent, and the practices in the whole province are also inconsistent. Some farmers sold their houses. In case of land acquisition and demolition, some places protect the buyers, while others only protect the compensation for the buyers' houses, and the land compensation is determined to belong to the village collective or the seller. The practice of our province 13 cities is also inconsistent. At present, two cities are "invalid contracts and effective treatment", that is, the house sales contracts are invalid, but the buyers are given the same compensation as the local villagers. Other cities are "invalid contracts and effective treatment", that is, the contracts are invalid, the house compensation belongs to the buyers, and the land compensation belongs to the village collective or the seller.