APUNTES SOBRE ALGUNAS CUESTIONES ACERCA DE LA REVISIÓN JUDICIAL DE LA CALIFICACIÓN REGISTRAL.

Abstract

1. The substantial modification in the matter at hand began with Act 24/2001 of 27 December on Tax, Administrative and Labour Measures, which established the judicial authorities' ultimate power to check registrars' scrutinies, whereas the responsibility for providing real judicial protection for citizens' rights resides with the courts.
It culminates with Act 24/2005 of 18 November: With the introduction of direct judicial challenges of registrars' decisions to refuse registration, not only is real judicial protection for the citizen accentuated; the notpurely- administrative nature of registrars' activity in the eyes of legislators is also accentuated.
2. Section 328 of the Mortgage Act calls for two hearings: a direct hearing against a registrar's decision to refuse registration and a hearing reviewing decisions by the Directorate- General of Registries and Notarial Affairs.
3. The direct hearing is for reviewing all kinds of decisions against registration on the basis of improper form. Decisions in favour of registration cannot be reviewed here.
4. The hearing reviewing decisions by the Directorate-General of Registries and Notarial Affairs is for mounting a judicial challenge of either an express decision handed down by the Executive Centre or a presumed decision by said administration.
5. The DGRNA cannot hand down an express decision contrary to the presumed decision after the pertinent deadline, once the deadline for judicial challenge of the presumed overruling has passed.
6. It must be admitted that DGRNA decisions cannot be challenged when they concern a registrar's decision to suspend registration due to remediable defects that are corrected, in order for the judicial supervision of said Executive Centre over the activity to be effective.
Government appeal should not be possible when the person concerned abandons the attempt at registration.
7. It must be an absolute exception for the registrar to be required to furnish a deposit in order to appeal DGRNA decisions, because such deposits are optional.
8. In matters of territorial competence, the rule is imperative, and therefore competence is not available to the parties through the mechanism of tacit submission.
9. The sole purpose of section 328.4 of the Spanish Mortgage Act is to satisfy the requirement of the event of indirect legitimation determining the legitimation of notaries and registrars who are directly affected, in order to appeal DGRNA decisions.