「The Research on the Implementation of Article 166-1 of Civil Code and Related Policy Recommendations」

「The Research on the Implementation of Article 166-1 of Civil Code and Related Policy Recommendations」

Since the article 166-1 of civil code is announced, it has never been implemented for 20 years because of its controversiality. As the legistive purpose said, article 166-1 is transplanted from German and Swiss law, however it is actually very different from German law. In general, only for conveyances of real estate must be by notaries accomplished in German and Swiss legal systems. According to the related article of German civil law, to cure the invaildity of contract for the lack of notarization, the in rem agreement from the parties about ownership of real estate should be notarized and registered. Therefore, there are obvious difference between article 166-1 and related article of German civil law.

Some policy research reports from EU also emphasis, notaries should not monopolize the legal service market of immovable property transaction. The difference from legal service of a broker, a conveyer, or a notary does not mean which one is better. The qualities of legal service from different pofessions are not always in rate with the costs for different profession.

The reaserch team primarily suggest that the article 166-1 of civil code should be abolish. Because the legal structure of the real estate transaction in Taiwan, which involves the intervention of property managers, brokers and consumers, has promoted sufficient transaction security. In particular, a land administrative representative has actually know-how which includes the legal knowledge of the transfer of real estate as well as notaries. In this way it can help the parties to prevent disputes that correspond to the function of notaries. In practice, real estate transactions are usually undisputed. Even notaries could not help the parties in many cases to prevent disputes. Most parties just only deliver their in rem agreement to registrated process, but not their contract under obligation law (der schuldrechtliche Vertrag). If notarization for their contract under obligation law must be a part of conveyance of immovable property, it would agaist the habitus of transaction.  Not even to say that the number of notaries are far not enough for the policy which all contracts about rights of property must be notarized.

The research team suggest also a second-best option that the article 166-1 of civil code should applicant only for transfer of immovable property. Because the legislative that force parties to notarize for convenance had ignored the doctrine of dogmatic, which is the basic element to legislative. It should be guided from thought of type, so that the applicable range of article 166-1 of civil law only for transfering the immovable property. To increase amout of notaries within a definite time, it should in every year within a difinite time hold exams or select lawyers for more amount of notarcy. Although notarization can prevent a little of disputions, but a land administration agent can also do that.

KEYWORDS: Compulsory Notarization, Land administration agent, Real estate Broker, Notary, Remedy of formal deficiency.