摘要
物权法第16条第1句是对不动产登记簿推定力之规定,而非仅赋予登记簿证据资格。不动产登记簿的推定力能够使不动产上的物权状态更加清晰,为不动产善意取得制度奠定了基础,有助于维护交易安全、提高交易效率。不动产登记簿的推定力属于法律推定中的权利推定,是可以推翻的。不动产登记簿的推定力可分为积极推定与消极推定,其适用对象是具有登记能力的权利。物权法第16条第1句分配了证明责任。确定民事实体权利的法律规范如婚姻法第17条第1款可以直接推翻不动产登记簿的正确性推定。
The first sentence of § 16 of CPL （Chinese Property Law） stipulates the presumptive correctness of real estate register, but not merely endows the register with the qualification of evi- dence. Firstly, if we would not acknowledge this sentence stipulates the presumption of register, the acquisition of real estate in good faith, which is regulated by § 106 of CPL, would lose its foundation. Secondly, the point of view that thinks this sentence just endows the register with ev- idence qualification contradicts § 17 and the first sentence of § 19 of CPL. Lastly, this sentence stipulates that the register shall be the basis for deciding the rights and their contents on a real es- tate, but the first sentence of § 17 of CPL just regulates that the certificate of rights shall be the evidence of real estate property. The difference means that the lawmaker of CPL acknowledges the presumption of register. The presumption of register, which makes the real estate property more clear, lays the foun dation for the system of acquisition of real estate in good faith. And it is also of great help to ef- fectively maintain the security of transaction as well as improve the efficiency of business. The presumption of register constitutes the presumption of rights as a kind of legal presumption, and it can be rebutted by opposite evidences. The presumption of register can be classified into posi- tive presumption and negative presumption. It can be applied to the rights with registrability, such as right to use construction land, right to the contracted management of land, right to min- eral locating, mining right, right to use water right to use ocean areas, easement of land and mortgage of real estate, and so on. Furthermore, the priority notice can also be presumed to be correct within some limits. However, the presumption of register can not be applied to obligatory right, legal status, legal capacity, etc. , even if they are registered. The first sentence of § 16 of CPL is not a substantive rule, but a procedural rule about the burden of proof. In other words, it can not determine the real holders of rights on a real estate fi- nally. When somebody raises an objection to the correctness of the real register, the presumption of register can be rebutted by opposite evidences. And the rules in the substantive laws, such as § 17 Ⅰ of Chinese Marriage Law, can also negate the presumptive correctness of the register.
出处
《法学研究》
CSSCI
北大核心
2010年第3期106-119,共14页
Chinese Journal of Law
基金
国家社科基金项目"不动产登记立法研究"(批准号:07BFX028)的阶段性成果
关键词
物权法
不动产登记
不动产登记簿的推定力
real estate register, presumptive correctness of register, Chinese Property Law
