摘要
不动产登记机构在办理转移登记时发现不动产上存在违法建筑,这类情形是否需要审查,能否登记。文章结合案例分析,认为不动产登记是物权公示行为,没有确权功能;无权审查登记原因行为合法性和有效性,不应审查与物权效力无关的内容;不应将属于其他部门行政管理职责且登记人员无力和无权审查的内容列入审查内容;属于产权管理应由出让合同约定的事项不宜作为登记申请审查内容。将法律法规有明确规定且登记人员可以把握的事项作为审查内容,对闲置土地等需要审查但未列入法律法规的应尽量列入法律法规。对于已经被认定为违法建筑的不动产,登记人员应按照相关规定不予办理登记,但不宜主动认定为违法建筑并因此不予办理转移登记。
When the real estate registration institution handles the transfer registration and finds illegal constructions on the real estate,whether this kind of situation needs to examine,whether it can be registered.Based on the specific case analysis,the paper considers that the real estate registration is the act of publication of real right without the function of confirming the right;there has no right to examine the legality and validity of the reason and behavior of registration,and it should not examine the contents irrelevant to the validity of real right;it should not include the contents that belong to the administrative responsibility of other departments and the content that the registration officer has no power or right to examine;the items that belong to the administration of property right but need to be agreed in the assignment contract should not be examined as the contents of a registration application.The items that are clearly stipulated in laws and regulations and can be handled by the registration officer shall be included as the content of the examination,and those items that need to be examined but not included in laws and regulations shall be included in laws and regulations as far as possible,such as unused land.According to the relevant provisions,the real estate that has been identified as illegal construction,the registration officer should not register it,but it is not appropriate to take the initiative to identify it as illegal construction and therefore do not transfer registration.
作者
石晨谊
SHI Chenyi(Department of Natural Resources of Fujian Province,Fuzhou 350001,China)
出处
《中国国土资源经济》
2021年第3期58-62,共5页
Natural Resource Economics of China
关键词
违法建筑
审查
不动产登记
illegal construction
examination
real estate registration
