Legal advertising constitutes a different issue from the publicity registry principle, however, little has been said about it. In this sense, in this installment we take on the challenge of unraveling what is related to its distinction, relationship and scope.
For such a company, it is impossible not to address in advance a brief development of both institutions, and then outline reflections, such as the respective directions, as a culmination.
II. BACKGROUND OF REGISTRY ADVERTISING
1. INTRODUCTION
Registry Advertising has evolved over time, in this sense, to understand its real significance it is necessary to take into account its antecedents. Thus, the study of registration advertising is not limited to the study of current legislation on it in a given State, but goes further.
2. EGYPT
In Egypt it is where the most remote antecedents of registration advertising have been located under religious supervision, where there were books for mortgages and for purchase sales, that is, records were kept for purchase sales (property records) and records for mortgages (contract records). Real estate transfers in some cities were announced through town criers and even sacrifices were made. Advertising was necessary for the formation of the contract and the contract is void if it was not published.
3. GREECE
In Greece the inscriptions were based on clay or wood registers and the encumbrances were registered where the domain of each property was registered. The sales were carried out as follows: they were announced for five days and held before a Magistrate and three neighbors who received a coin as proof. In other words, legal advertising was more evolved in Greece than in Egypt.
4. ROME
4.1. GENERALITIES
In Rome there was no advertising by a Registry and property acquisitions were made on the basis of in jure cessio, mancipatio, traditio, and usucapio. The same ones that are derivative ways of acquiring property, unlike occupation, accession, the litis aestimatio, among others, which were original ways of acquiring property, that is, in Rome the ways of acquiring property were the ways original and derivative modes (there were also other classifications). Of the four derivative ways of acquiring property, the most studied as antecedents of registry advertising are the first three, that is, in jure cessio, mancipatio and traditio.
4.2. THE MANCIPATIO
The mancipatio was considered as a derivative means of acquiring property, as a figurative sale, which was used for res mancipi that was carried out in the presence of five witnesses who are Roman citizens and pubescent in the presence of another person holding a scale, the acquirer affirms that the thing belongs to him and buys the thing through copper and the copper scale, then hits this scale with the copper which is like the price. The mancipatio was carried out in public.
4.3. THE IN JURE CESSIO
The in jure cessio was considered as a derivative means of acquisition of the property that was used for res mancipi, which was an apparent claim process. To acquire the property, the acquirer goes to the magistrate, the urban praetor or the provincial governor to claim the things in question. The acquirer holds the thing and pronounces the vindication formula, if the transferor does not answer, the magistrate awards the thing to the acquirer. The in jure cessio was carried out in public.
4.4. THE TRADITI
The traditio was considered as a derivative means of acquisition of the property that was used for the res nec mancipi that consists of the delivery of the thing, that is, it placed the acquirer in possession in a visible way and there are cases in which the traditio is used ficta, that is to say, they are cases in which the tradition is made without delivery of the thing, but it produces the same effects of the traditio; exempli gratia: 1) The symbolic traditio, which is the delivery of a symbol or a symbolic act. There may be four cases: the delivery of keys to a warehouse, the delivery of the property instrument of the transferor, the marking of the thing using conventional signs and ordering the custody of the thing, 2) The traditio longa manu, which consists of the delivery of the thing at a distance, 3) the traditio brevi manu,when the one who holds the thing becomes a legal possessor, 4) The constitutum possessorium, when the one who owns the thing alienates it but keeps it in his own power.
4.5. THE USUCAPIO
The usucapio was considered as a derivative means of property acquisition, which consists of acquiring the domain by the possession of a thing during an interval of time. The usucapio aims to transform an apparent legal situation into a real one.
5. THE BARBARIANS
The barbarians used a mode of transmission characterized by being eminently formalistic, they developed symbolic traditions, which consisted in the delivery of a clod, of a tree branch that took place before the Judge or else in the presence of witnesses.
6. FEUDALISM
In the time of the feudal lords, to transfer ownership of the real estate, the intervention of the feudal lord or his officers was necessary, in this act the transferor was dispossessed and the acquirer recognizes the notarial investiture. Then the so-called dispossession-possession clause was devised, by which the parties signed a deed before the Notary in which it was stated that the transferor was dispossessing the property and that the acquirer took possession of the property.
7. GERMANY
7.1. GENERALITIES
In Germany, real estate advertising is carried out in three ways: extrajudicial auflassung, judicial auflassung and registration in the property registers.
7.2. THE EXTRAJUDICIAL AUFLASSUNG
Via the same, the transferor is stripped of the rights he has over the thing and then the acquirer appears who seizes and occupies the thing regardless of the rights of the transferor. In ancient law, it was carried out in a solemn act before witnesses which publicized the act. In the extrajudicial auflassung, two acts are distinguished: the first is the agreement on the transfer of ownership, which is carried out by delivering a symbol of the thing that can be a piece of land; and the second is the material delivery of the property, which is carried out by traveling the boundaries of the land and is consummated by granting the possession of the acquirer and the abandonment by the transferor.
7.3. THE JUDICIAL AUFLASSUNG
At the beginning it was considered as an apparent process, later it was admitted that the transmissions were carried out before the Court, which granted a document that confirmed the domain on the ground. Initially, the glove was lifted, then the document was lifted, which was done as a sign of appropriation of the land. All these acts were carried out in the field, and when it was carried out far from the field, only the delivery of the document was sufficient.
3-EDICTAL, REGULATORY AND REGISTRY PUBLICITY
Legal advertising can be of three classes: editorial advertising, regulatory advertising and registration advertising. The first consists of the notification by edicts regulated by art. 165 and 166 of the Civil Procedure Code. The second is the one carried out through the Official Gazette El Peruano with respect to Peruvian legal norms (Constitution, Laws, Supreme Decrees, Ministerial Resolutions, Vice-Ministerial Resolutions, Mayor's Resolutions, Municipal Resolutions, among other Peruvian legal regulations. the third, is the one that emanates from the Registries and among them are those grouped in article 2 of Law 26366 and is referred to in the first part of the first article of the Preliminary Title of the General Regulation of Public Registries.
TABLE No. 3
4- ADVERTISING AS PROPAGAND, AS NOTICE AND AS A CERTIFYING FUNCTION OF THE STATE
Advertising as propaganda refers to the diffusion used by the merchant and the companies, among others, through radio, television, internet (web pages, emails, blogs, Facebook, among many other possibilities), newspapers, posters, etc., so that your product or service is known. Advertising as propaganda is aimed at greater acceptance by potential customers and buyers.
Advertising as news is that which is carried out through the publications established in the General Law of Companies and in art. 85 of the Code studied, these publications are intended for people to oppose. For example, in the capital reduction the publication provided for in art. 217 of the General Law of Companies, its function is that creditors can oppose according to art. 219 of the same Law.
Another case of advertising as news, which is the publication established in art. 506 of the Civil Procedure Code. The Registries that have the certifying function of the State are the Registers of Administrative Information and the Registries of Legal Security ().
5- PRIVATE RECORDS AND PUBLIC RECORDS
Advertising can be done by private registries or by public registries. The advertising in charge of private registries is that provided by the private registries, among which we can cite the Updated Associate Registries (Civil Code article 83) and the Stock Registration Registries (Law 26887, article 91), among others. The advertising in charge of public records is that granted by the records grouped in article 2 of Law 26366, among others.
6- ADMINISTRATIVE RECORDS AND LEGAL RECORDS
Public records are of two classes: Administrative Records and Legal Records. Administrative Records, also known as Administrative Information Records, produce news advertising. The Legal Registries, also called Legal Security Registries, produce publicity effect. In this regard, we have that in the Declaration of the Charter of Buenos Aires, approved in the First International Congress of Registration Law in 1972, it is stated: “The Public Real Estate Registries of a legal nature are specific institutions organized by the State and placed at its service and that of individuals to consolidate credit and the fulfillment of the function of property, compatible with freedom, progress and the development of peoples ”.
7- REGISTRY ADVERTISING
The reason for being of the Registry is the registry advertising ( ), in this sense the first part of art. I of the Preliminary Title of the Single Ordered Text of the General Regulations of Public Registries establishes that the Registry grants legal publicity to the various acts or registrable rights and in the second part of said paragraph of the same article it is specified that the concept of registration also includes preventive annotations, unless this Regulation expressly differentiates them. In accordance with the second paragraph of the same rule, the content of the registry entries affects third parties even when they have not had effective knowledge of it. In the Peruvian State, in some cases, the Registry not only publicizes an act or right but also constitutes a right, as is the case of the registration of the mortgage, since the registration just constitutes the one indicated( ), as a real right of guarantee, and also the case of the registration of articles of incorporation of the companies, since the registration in the Registry grants legal personality to the companies, in accordance with art. 6 of the General Law of Companies, which establishes that the company acquires legal personality from its registration in the Registry and maintains it until its extinction is registered. In addition, the first paragraph of art. 77 of the Civil Code establishes that the existence of the legal personality of private law begins on the day of its registration in the respective registry, except as otherwise provided by law. The art. 127 of the aforementioned Regulation establishes that: “Every person has the right to request without expression of cause and obtain from the Registry, after payment of the corresponding registration fees:a) The manifestation of the registry items or exhibition of the titles that make up the registry file or that are in the registration process. b) The issuance of verbatim certificates of the inscriptions, annotations, cancellations and verbatim copies of the documents that have served to extend them and that are in the registry file. c) The issuance of compendium certificates that prove the existence or validity of certain inscriptions or annotations, as well as those that determine the non-existence of the same. d) The information and certification of the content of the index data and the content of the presentation entries ”. And art. 128 of the same Regulation establishes that: "The person responsible for the registry may not keep the information contained in the registry file in reserve,With the exception of the prohibitions expressly established in other provisions. When the requested information affects the right to privacy, it may only be granted to those who demonstrate a legitimate interest, in accordance with the provisions established by the National Superintendence of Public Registries ”.
The effects of publication in the Registry are different in each of the Registry Systems ( )o Registry Advertising Systems, for example, in some Registry Systems the publication in the Registry constitutes real rights and in other Registry Systems the publication in the Registry has the effect that the real right is enforceable against third parties, that is, the publication in the Registry. Registration has different effects in each Registry System. Likewise, the requirements to access registry advertising are different in each of the Registry Systems or Registry Advertising Systems. In this sense, we have that the Declaration of the Charter of Buenos Aires, approved in the First International Congress of Registration Law in 1972, states: "In the current state of science and legal techniques, Real Estate Registries are the most efficient means for advertising of real rights over real estate,the taxes that affect them and the measures that limit or condition their free availability, without prejudice to the different value and scope assigned to the registration within the modalities of the legislation ”. In the same Declaration it is declared that: "The appropriate means to achieve registration publicity lies in the fact that the legislation provides for the following fundamental aspects: a) That specialized professionals always intervene in any legal act or business, since their particular preparation will allow them to examine With a critical and evaluative spirit, the inessential set of facts, business acts and ownership that are always necessary to achieve these results, b) That every registrable act or business must be formalized in an authentic document,thus guaranteeing the legitimacy, legality and certainty of the law ”.
8- Registry Relevance
Registry advertising as a legitimizing publicity mechanism is not offered to all acts, but it applies only to some acts which are called registrable acts ( ). In this sense, for an act to be considered registrable, it is necessary for the registration reality to vary or to impose taxes, or to ensure the subsequent registration of a right. In the first case, the registration of a sale purchase could vary. In the second case, if it is a lien or a mortgage. In the third case, we could consider a registry lock. In these three cases, we would be facing acts that have a registry reception which are called registrable acts.
That is, not any act is registered, since there are acts that are not registrable, such as, for example, they are not registrable in the Companies Registry: 1. Associative contracts provided for in the Law, 2. The transfer of shares or obligations issued by the society; changes and splitting of shares; the constitution, modification or termination of rights and charges thereon, nor the precautionary measures or judgments that refer to actions or obligations, and 3. Judgments relating to the debts of the company or branch.
9-MATERIAL ADVERTISING AND FORMAL ADVERTISING
Registration advertising can be of two kinds material advertising and formal advertising. Material Advertising is the one that is contained in the Advertising Registry Principle and formal Advertising refers to the certifications and statements issued by the Registry, that is, to the effective knowledge of the registry file and it is to which we will refer then.
Material advertising is established in the second paragraph of art. I of the Preliminary Title of the aforementioned Regulation, which establishes that: "The content of the registry entries affects third parties even when they have not had effective knowledge of it", and in art. 2012 of the Civil Code in the following terms: "It is presumed, without admitting proof to the contrary, that everyone has knowledge of the content of the inscriptions."
Formal advertising is established in art. II of the Preliminary Title of the referred Regulation, in the following terms: “The Registry is public. Formal registry advertising guarantees that everyone has access to effective knowledge of the content of the registry entries and, in general, obtains information from the registry file. The personnel responsible for the Registry will not be able to reserve the information contained in the registry file, except for the express prohibitions established in the Registry Regulations ”.
10. POSITIVE AND NEGATIVE MATERIAL ADVERTISING
For Positive Material Advertising, the acts and / or rights published in the Registry are enforceable against third parties; and due to Negative Material Advertising, the acts and / or rights not published in the Registry are not enforceable against third parties.
11. DIRECT ADVERTISING AND INDIRECT ADVERTISING
Formal advertising can be of two classes: direct advertising and indirect advertising. Direct advertising is that which is granted through demonstrations, and indirect advertising is that which is granted through certificates ( ).
12. DIRECT ADVERTISING (MANIFESTATIONS)
In accordance with Article 129 of the aforementioned Regulation, direct formal advertising, that is, statements ( )They are provided as follows: a) In the case of electronic items through the online information service, through the terminals located at the Registry Office facilities or through other computer means; b) In the cases of items, contained in volumes, that have not been substituted by the micro-files system, as well as the titles filed or in process, at the premises of the respective Registry Office and in the presence of the personnel expressly authorized to do so.. It is forbidden to fold sheets, put notes or signs, or perform acts that may alter their integrity; and c) With the delivery of a simple copy of the file or with the printing of the electronic items displayed or the indexes organized by the Registries.
13. INDIRECT ADVERTISING (CERTIFICATES)
In the Declaration of the Charter of Buenos Aires, approved in the First International Congress of Registration Law in 1972, it is declared: “The ownership and freedom of charges or the existence of liens on real estate will be accredited by certification of the Registry, issued in accordance with to the laws, which will enjoy the necessary virtuality in all countries, as long as it is compatible with national laws ”. Ergo, indirect advertising is the one provided by the registry through certificates (), which are of various types, classes or varieties.
IV. REGISTRY Principle of Advertising
The Advertising Registration Principle is enshrined in our legal system in article 2012 of the referred Code, which establishes: "It is presumed, without admitting evidence to the contrary, that everyone has knowledge of the content of the registrations." It is also enshrined in Article I of the Preliminary Title of the Single Ordered Text of the General Regulation of Public Registries, in the second paragraph of which establishes: "The content of the registry entries affects third parties even when they have not had effective knowledge of it. ”.
The content of article 2012 of the Civil Code is applicable both for registrations and preventive annotations. Article I of the Preliminary Title of the aforementioned Regulation has a more precise content than article 2012 of the Civil Code, since it refers to the content of the registry entries, that is, to the registration entries, whose content is established that it affects the third parties.
Advertising does not extend to archived titles, unless there are circumstances that determine otherwise in a specific case. For some writers there is discussion whether or not the publicity granted by the Registry extends to archived titles. But in any case, this problem can only occur in Registry Systems with a registered Title File. The registration principle of publicity is enshrined in Article I of the Preliminary Title of the aforementioned Regulation that refers to material publicity, by which it is presumed that everyone has knowledge of the content of the registration entries. What matters is that they have had the possibility to know, and not that they have known, that is, it is irrelevant whether they have known or not.The judicial notification is different because it is intended to inform the interested parties of the content of the judicial decisions( ); while in the registration it is enough that it has been known so that it is enforceable and affects you. In the Declaration of the Buenos Aires Charter, approved at the First International Congress of Registration Law in 1972, it is stated: "The assistants of the Registries and their formal publicity must be under the safeguard of the Courts of Justice." The principle of publicity registration was enshrined in Article V of the abrogated General Regulation of Public Registries of 1968, in the following terms: "It is presumed, without admitting evidence to the contrary, that everyone is aware of the content of the registrations."The Advertising Registration Principle was established in Article VIII of the Preliminary Title of the Draft of the General Registration Regulations published on September 4, 1994 in the following terms: “It is presumed, without admitting evidence to the contrary, that everyone has knowledge of the content of the inscriptions ”.
V. ON THE COMPLEMENTARITY OF LEGAL ADVERTISING AND THE PRINCIPLE OF THE REGISTRY OF ADVERTISING
Legal advertising and the registration principle of advertising complement each other, therefore, they should not be studied separately, if not, jointly to know other types of advertising, since registered advertising constitutes only one type of legal advertising.
Thus, when studying legal advertising together with the registration principle of advertising, they will be able to understand the cases in which the last of those mentioned applies; and vice versa, when studying only the aforementioned principle it is evident that the different types, classes or varieties of advertising will not be distinguished (which constitutes a fairly broad subject, of which we explain in this headquarters only its main aspects, for reasons of space), which not only generates problems in the registry office, but also in other offices, such as judicial, for example.
That is, those who should know the most about the topics studied are the registry officials, therefore, they must be trained in a broad way in these important topics, with which, the application of the law will be more agile, in an environment in which the Information is scarce and it is also too expensive when it is of quality.
Furthermore, we have that said complementarity, it is feasible of a better appreciation, through the following case:
- At first, it is appreciated that in the registration of a house, made in the Sunarp land registry, legal advertising is configured. However, in a second moment, it should be taken into account that the aforementioned is complemented with the registration principle of publicity. Consequently, it is appreciated that legal advertising and the registration principle of publicity are different, then, while the first is refers to the registration, the cited principle refers to the effects of it.
CONCLUSIONS
After having briefly developed legal advertising and the principle of advertising, we can formulate the following conclusions:
- The two topics are different from each other, in this sense, the first is studied outside the registry principles, while the opposite occurs in the second.In Peruvian law there are few lawyers who know these topics, and the few who know the themselves, they have not studied them jointly, which prevents them from making contributions to the registration law. Registration publicity is not only provided by the registration areas of Sunarp, but also by other public institutions, within which we can cite the case of Indecopi, municipalities and Conasev, and some private entities, of which we will mention the associations regarding their updated records of associates, the public limited companies regarding their share registrations, thoroughbred horse records, private dog records, among others.In these times, the possibility of implementing international registries is being studied, which would be applied to international aircraft and international ships, mainly, in which case the international registry advertising and the registry principle of international registry advertising will be studied more widely. correctors - not only legal, but in various sources of law - in the subjects studied. It is necessary that the publicity provided by the registration areas be extended to other acts, which in these times are considered as non-registrable, with which the registration is It will constitute a more efficient institution. Legal advertising has been little studied in Peruvian law, constituting one of its classes registry advertising, that is,The two types of advertising mentioned are not synonymous, but rather have different meanings and different implications.Registration advertising is constituted as the type of legal advertising most studied in Peruvian and foreign law, therefore, the first cannot be subtracted importance.To understand registry advertising, all the issues that comprise it must be studied, within which we can cite its antecedents, registry principles, registry advertising systems, legal advertising classes, registry advertising classes, registry qualification, classes of qualification, acts to which registration publicity can be applied and acts to which it can not be applied, qualification in each of the types, classes or varieties of instruments, among others.Those who are dedicated to the study of registration publicity are the registrars, who are dedicated to the study and application of registration law, which constitutes a branch of law different from civil law and notarial law, however, there is a very close relationship between the three branches of law indicated, which also occurs with other branches of law.
() The evolution of the Registry can be summarized as follows: a Registry of Contracts (or guarantees), and then a Registry of Assets, but this only for identifiable assets. Registration advertising was not always as we know it now, but it evolved over time, that is, registration advertising has as its main antecedents: Egypt, Greece, Rome, the Barbarians, Germany, France and Spain.
() In Rome things (tangible property) were classified in different ways, one of the classifications being the one that divided things into res mancipi and res nec mancipi. The res mancipi were considered the lands and houses located in the regions invested with the jus italicum, the royal easements of said estates and also the pack and draft animals. As res nec mancipi, animals and jewels were considered among others.
() The mode of transmission called judicial auflassung is very similar to the in jure cessio (apparent process of claim) that was carried out as a derivative mode of transmission of property in Rome.
() The Napoleon Code of March 21, 1804 is a contemporary Code of great importance that has 2281 articles which are divided into an introductory title and three books that are the following: 1) the right of persons and the right of family, 2) objects and species of property, and 3) the ways of acquiring property, which deals with inheritance law, the right of obligations, the marital property regime and prescription, this Code served as inspiration for Codes Civilians of other States. The development of this Civil Code was in charge of Tronchet, Bigot de Préameneu,Portalis and Maleville (this commission was commissioned by Napoleon Bonaparte to prepare a Civil Code giving it a period of six months) and this legislative body was one of the first Special Codes (almost all previous Codes were general. However, the codes are currently studied within the subject known as "Codification", and there are various classifications of them). In other words, Napoleon Bonaparte in less than four years gave France its first civil codification. Later, the transcription of the judgments, among others, was extended, in accordance with the Decree Law of October 30, 1935. Subsequently, the state of unsecured creditors who can access the seizure was improved, in accordance with the Law of June 17 1938 and then increased the acts that can be published.
() Of all these regulations, the most important and well-known is the Spanish Mortgage Law, which has 416 articles and XV Titles, it is necessary to emphasize that this Mortgage Law has a title dedicated to mortgages which is title V, which is called Mortgages. This Mortgage Law has a Statement of Motives and with it the Registries cease to be Encumbrance Registries and it was a very finished law and served as a source for the Registration Regulations of Peru. In the Statement of Motives for the abrogated General Regulation of Public Registries of 1968, it is specified that “The current regulations are inspired by Spanish legislation, to such an extent that many of its regulations are but verbatim copies of the mortgage law and regulations of the peninsula; Without hesitation, the Board believes that this reception of the Law must continue;the Spanish system is the one that best adapts to our reality; on the other hand, it is convenient for Peru to take advantage of the teachings of the brilliant renovation that has taken place in recent years in the jurisprudence of the Spanish registry system ”. Then it is necessary to take into account the 1869 reform, the 1909 reform, the 1944 mortgage reform, the 1946 consolidated text, the 1947 Regulation, the 1959 Mortgage Regulation, the 1977 Regulation, the 1982 Regulation and the regulatory reform of December 21, 1983.the 1944 mortgage reform, the 1946 consolidated text, the 1947 Regulation, the 1959 Mortgage Regulation, the 1977 Regulation, the 1982 Regulation and the regulatory reform of December 21, 1983.the 1944 mortgage reform, the 1946 consolidated text, the 1947 Regulation, the 1959 Mortgage Regulation, the 1977 Regulation, the 1982 Regulation and the regulatory reform of December 21, 1983.
() In Peruvian law, the most well-known types of advertising are possession and registration, however, we must specify that there are other varieties of the one indicated, which we will study at this headquarters, to disseminate knowledge, which in the Peruvian case is too low or too high a cost.
() The registry law constitutes a branch of law or autonomous legal discipline because it has its own rules, some of which are registry regulations, its own principles which are registry principles, because there are chairs and masters dedicated to its study, because there are registry doctrine and writers dedicated to the study of registry law and because there is registry jurisprudence and full registry. In other words, the one indicated is totally different from traditional civil law, therefore, we must state that they constitute two different branches of law.
() Legal advertising can be of very different degrees. The first form of advertising is equivalent to a mere announcement or news, for example the public announcement of discovery made by the municipal authority in accordance with article 932 of the Civil Code, publications in case of total deterioration, loss and theft of securities to which referenced in article 103.2 of the Securities Law, contained in Law 27287, or the call for a general shareholders' meeting pursuant to article 113 of the General Companies Law, contained in Law 26887. Second-degree advertising, it requires the only proof of an act or legal situation, that is, it becomes the only possible means of proof. The publicity of this degree is reached by marriage certificates. Third grade advertising,It is called legitimizing advertising, which operates when third parties can act trusting that the legal or published situation is unquestionable for them. In this sense, possessory advertising and registered advertising are legitimizing advertising mechanisms. Finally, it is necessary to refer to the constitutive advertising, by which the advertising gives existence to the act as occurs with the registration advertising in the German Registry System, which is a Constitutive Registry System or with the registration of the mortgage or pledge with delivery legal in the Peruvian State.It is necessary to refer to the constitutive publicity, by which the publicity gives existence to the act as occurs with the registry publicity in the German Registry System, which is a Constitutive Registry System or with the registration of the mortgage or pledge with legal delivery in the Peruvian State.It is necessary to refer to the constitutive publicity, by which the publicity gives existence to the act as occurs with the registry publicity in the German Registry System, which is a Constitutive Registry System or with the registration of the mortgage or pledge with legal delivery in the Peruvian State.
() In another location we develop the Presumptions contained in the Registry Principles.
() Article 2012 of the aforementioned Code establishes the Advertising Registration Principle.
() It is necessary to specify that possession and registration are also considered as mechanisms of enforceability. Capitant affirms that the enforceability is the quality of the right or defense that its holder can assert against third parties, for which the advertising mechanisms or means of publicity do not refer to the same as the enforceability mechanisms refer to, since the Publicity mechanisms are limited to determining, for example, who is the owner or the tenant, or who is the attorney-in-fact, while enforcement mechanisms go further, since they refer to the defense that the owner can assert against third parties. In this sense, in the Peruvian State, possession and registration are mechanisms of publicity but are also considered as mechanisms of enforceability. In this sense,Regarding the Real Property Registry, the first paragraph of article 2022 of the Code studied establishes that in order to oppose real rights over real estate to those who also have real rights over them, it is necessary that the opposing right be registered prior to that of the former. who opposes, which has as its antecedent Article 1050 of the Peruvian Civil Code of 1936. However, for some authors the mechanisms of publicity refer to the same as the mechanisms of enforceability with which we do not agree. In Argentina, Article 2 of Law 17801 of 07-10-68 establishes that: “In accordance with the provisions of Articles 2505, 3135 and those corresponding to the Civil Code, for its publicity, enforceability to third parties and other provisions in this Law,in the aforementioned registers, the following documents will be registered or noted, as appropriate… ”; In other words, advertising and enforceability do not refer to the same thing, but are two different concepts.
() Book V of the referred Code is entitled Real Rights and deals with the following real rights: possession, property, usufruct, use, habitation, surface area and easements, which are main real rights, and on antichresis, mortgage and the right of retention, which are security rights or accessory rights. The positive law of each State determines which are the real rights in each of the States, that is, the real rights are not the same in the legal systems of all the States. In this sense, in some States, possession is not considered a real right. Article 896 of the Code studied establishes that possession is the exercise of one or more powers inherent to property rights.Article 824 of the abrogated Peruvian Civil Code of 1936 establishes that the possessor is the one who actually exercises the powers inherent to property or one or more of them. The aforementioned Code establishes in article 923 that property is the legal power that allows the use, enjoyment, disposition and claim of an asset. The same article establishes that it must be exercised in harmony with the social interest and within the limits of the law. The same Code makes legal in article 999 that the usufruct confers the powers to use and temporarily enjoy someone else's property. It is also established that certain benefits and utilities can be excluded from the usufruct. In the same article it appears that the usufruct can fall on all kinds of non-consumable goods, except in the case provided in articles 1018 and 1020 (which refer to the quasi-fruit).Article 1026 of the Code studied establishes that the right to use or make use of a non-consumable good is governed by the provisions of the previous title, insofar as they are applicable. Article 1027 establishes that when the right of use falls on a house or part of it to serve as a dwelling, the right of habitation is deemed constituted. The same Code establishes in article 1030 that the surface right can be constituted by which the surface owner has the power to temporarily have a construction in separate property on or under the surface of the ground.Article 1035 of the same Code stipulates that the law or the owner of a property may impose liens on him for the benefit of another that entitle the owner of the dominant property to practice certain acts of use of the serving property or to prevent the owner of the latter from exercise of any of your rights.
() The Legal Advertising of real rights throughout history has been carried out through two legal institutions that are: Possession and Registration.
() It is common to maintain that the Registry provides publicity to real rights and that it does not publicize contracts, which is not correct because the Registry does not publicize the pledge with displacement that is a real right, and because the Registry provides publicity to some contracts such as the mandate, the lease, the option contract, the exchange, the donation and the real estate leasing (only on registrable assets) among others. However, it is necessary to specify that the Registry does not provide publicity to some contracts such as the surety, credit, letter of guarantee, securities, insurance contract and mutual.
() The Registries are classified into Registers of Assets, Registries of Persons and Registries of Contracts.
() Articles 950 and 951 of the Code studied have as national legislative antecedents Articles 871 and 893 of the abrogated Peruvian Civil Code of 1936.
() The abrogated Peruvian Civil Code of 1852 regulates the acquisitive prescription of domain for real estate and personal property from article 536 to 555.
() That is, the current Code, the Peruvian Civil Code of 1936, and the Peruvian Civil Code of 1852 establish the usucapion for real estate and personal property.
() It is necessary to specify that paragraph 937 of the German Civil Code of 1900 (BGB) establishes: “Whoever has ten years in possession as owner of a movable thing acquires the property (usucapion). Usucapion is excluded if the acquirer is not in good faith when acquiring possession as the owner or if afterwards the property does not belong to him ", and paragraph 900 of the same Code establishes that:" Who is registered in the Registry As the owner of a property, without having obtained the property - of it -, you acquire the property if the registration has existed for thirty years and - if - during that time you have had the property in possession as the owner. The term of thirty years is computed in the same way as the term of usucapion of a movable thing.The course of the term is suspended while a contradictory entry against the inaccuracy of the registration is practiced in the Registry. These provisions are timely applied if any other right that does not belong to her is registered in the Registry in the name of someone, which authorizes the possession of the property, or whose exercise is protected according to the existing provisions for possession. For the rank of law, registration is decisive ”.For the rank of law, registration is decisive ”.For the rank of law, registration is decisive ”.
() Regarding Administrative Information Records and Legal Security Records, few distinctions have been studied in Peruvian law, which serves to take into account that this topic is more developed in foreign law, within which we can cite foreign doctrine.
() Registration advertising constitutes a subject that must be known by all registrars, which is the name by which experts and specialists in the study and application of registration law are known. And for a broader knowledge of this topic, we recommend studying it together with notarial advertising.
() On the mortgage several studies have been published, in which we have noticed that the rights that can be mortgaged have not been developed (a topic that we will develop in another location), because not only can the property right be mortgaged, but also You can also mortgage other rights.
() There are several classifications of registry systems, some of which are properly legal families, according to comparative law informs us, however, the term “legal families” is little accepted in registry law to classify registry systems and mortgage. According to our research, there are registry systems: Declarative, Constitutive, Validating, Non-Validating, Real Folio, Personal Folio, Inscription, Transcription, with Titles file, without Titles file, Full Advertising, Incomplete Advertising, with Registry Public Faith, without Registry Public Faith, with Legitimation, without Legitimation, with double sale, with one sale, Registration of Rights, Registration of Documents, Germanic, Romanist, Anglo-Saxon, among others.And in addition, the registration systems must be taken into account according to the country, therefore, according to this criterion the most important are French, German, Australian, Swiss, Italian, American, Brazilian, Chilean, Peruvian, mainly.
() The different acts are divided for registration law into registrable acts and non-registrable acts, and the former are classified into registrable acts and annotatable acts.
() These kinds of advertising, such as direct and indirect, will be studied separately to allow a more detailed study of this topic.
() The demonstrations are little known by civilistas, however, the registrars are widely aware of this issue, but the national doctrine has little developed this important issue, which has considerably limited its development.
() The certificates are quite studied in registry law and are of various types, for example they are positive and negative, literal and compendium, among many other classifications.
() As expressly established in the Peruvian Civil Procedure Code of 1993, in its article 155, that is, lawyers dedicated to the study of civil procedural law, hardly understand the registration publicity, which is a subject well known by legal writers registry, which are called registry writers.
() What has generated many problems in the study and application of registry law.
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