Research On Legal Issues Of Loan Contrac

The complexity of the phenomenon of borrowing names involves not only the internal relationship between dormant owner and nominal owner,but also the external relationship between dormant owner,nominal owner and the third party.The traditional research method is to directly interpret the name-borrowing behavior as the existing legal relations such as entrustment,trust and illegal behavior,and try to apply the existing legal rules to all types of name-borrowing behavior by means of implication.However,through comparison,it is found that although the nameborrowing phenomenon is similar to these existing legal acts,the name-borrowing contract itself is diverse and needs to be typed.It cannot simply equate all nameborrowing phenomena with a specific type of legal act.Specifically,according to the different contents of the name-borrowing contracts,they can be classified into licensed name-borrowing,entrusted name-borrowing and partnership name-borrowing.Its legal significance is that the loopholes of the contract terms with unclear agreement can be filled with reference to the provisions of applicable licensing(borrowing),entrustment and partnership.At present,the research on specific name-borrowing behavior mostly focuses on the external relationship of name-borrowing,such as the legal effect of the unauthorized disposal of real estate by the nominal owner who buys a house by the name of the other person,and whether the dormant owner can raise an objection to the enforcement when the creditor of the nominal owner holds the equity on his behalf applies for enforcement.However,through the retrieval of practical cases,it is found that internal disputes between dormant owner and nominal owner occur from time to time,and the internal rights and obligations of name-borrowing contracts may also affect the external relations.Therefore,it is impossible to study their external relations without breaking away from the internal relations of name-borrowing contracts.In order to correct the misunderstanding of the existing research,the research on the name-borrowing contract should trace its origin,adhere to the problem orientation and practice orientation,based on the original transaction structure of the nameborrowing contract,adopt the internal to external analysis framework,and systematically study the internal and external relations of the name-borrowing contract in combination with the real transactions reflected in the real cases.In the study of internal relations,relevant cases reflect that most of the name-borrowing contracts in practice are "incomplete contracts",and there are many disputes about whether they even constitute the name-borrowing contract itself.Therefore,first of all,we should clarify the identification standard of the name-borrowing contract,that is,whether there is a name-borrowing agreement as the core standard to judge whether the contract belongs to the name-borrowing contract.The basic principle of private autonomy should be adhered to in the interpretation of name-borrowing contracts.In terms of the performance of the name-borrowing contract,the performance period is jointly determined by the nature of the name-borrowing act itself,the nature of the Legal Act implemented by name-borrowing,and the purpose of the parties entering into the name-borrowing contract;The consideration of the name-borrowing contract and the profit of the nominally-owned property should be treated differently according to the different types of licensed,entrusted and partnership name-borrowing.In terms of the termination and rescission of the name-borrowing contract,the reasons for the termination and rescission still need to be determined according to different performance conditions and with the help of the rules of the general principles of contract of the Civil Code;In terms of the legal consequences of termination and rescission,the disposal of property is the most special.The specific legal consequences depend on the different nature of the property and the different types of nameborrowing contracts.Some of the motives for the dormant owner to signing a name-borrowing contract are to reduce the transaction cost for specific economic interests,some are to avoid the national market access supervision,and some are unwilling to let the counterparty or the public know their existence for other reasons.If a transaction is conducted by borrowing a name,the result is that the parties to the transaction or the obligee are "inconsistent with the name and reality",which is an abnormal state in the transaction,and there will be more involvement of public power.The form of public power’s intervention in private contract is the restriction on the content of the contract.In the field of name-borrowing contract,there are few cases where legislation directly intervenes to restrict the content of the contract,mainly in the field of name-borrowing construction.In other fields,the judicial application of the principle of public order and good customs is more to deny the effectiveness of the name-borrowing contract,so as to realize the effect of restricting the content of the contract.At present,in practice,the judgment standard and legal effect of restricting the content of name-borrowing contract are not unified,and there are even problems of transitional intervention of judicial power.In the application of the rules of public order and good customs,the method of interest measurement can be used to prudently determine the effectiveness of the contract according to the actual infringement degree of the contract on the public interest and in combination with the principle of good faith.In particular,it is necessary to examine the relationship between the results of contract performance and the purpose of supervision.If negating the effectiveness of the contract cannot achieve the purpose of supervision,it is not appropriate to consider the contract invalid.In terms of the external relationship of name-borrowing contract,the problem areas mainly focus on the real property and equity property that nominally owned by the other person.Its normative problems lie in three aspects: the ownership of property rights,the change of property rights and the enforcement of property rights.In terms of the ownership of the property nominally owned by the other person,there are two diametrically opposite judgment views in practice that the property belongs to the dormant owner or nominal owner,behind which is the dispute over the nature of the property rights.The views which support the ownership of the property to the dormant owner mainly include: the view that the collusion of the act of real right is invalid,the view that the distinction between factual rights and legal rights,the view that the scope of application of the principle of appearance is limited,and so on.Because our law does not adopt the theory of real right act,and does not distinguish between factual rights and legal rights,the first two views are untenable.The so-called externalism theory itself does not solve the problem of right ownership,so it can not demonstrate the right ownership of property with the boundary of the scope of application of externalism.On the issue of property ownership,we should judge the ownership of property in strict accordance with the elements of acquisition and change of property rights stipulated by law,and we can’t equate owning property interests with owning property rights.For example,if the real right of real estate obtained by legal act is registered as the formal element of right acquisition,the registered obligee,that is,the issuer,should be recognized as the real right holder,and the dormant owner is not the real right holder.For the real right of movable property,because the separation of possession and ownership is more common in practice,and the requirement of possession as the acquisition element of right is weakening,although the law stipulates that possession is one of the acquisition elements of real right,the ownership of the right of movable property mainly depends on the agreement of the issuer and the dormant owner.The identification of the equity of a limited liability company should adhere to the formal standard,that is,the confirmation of the qualification of shareholders by the company should be taken as the element of equity acquisition.Therefore,the equity of a limited liability company that nominally owned by the other person should belong to the shareholders recorded in the register of shareholders,that is,the nominee,not the dormant owner.The change of the rights of the nominally-owned property is closely related to the ownership of the nominally-owned property.If the property right belongs to the nominal owner,although the dormant owner may indirectly enjoy the interest of the property based on the name-borrowing contract,the interest is only the creditor’s right of the dormant owner to the nominal owner,that is,the relative right,rather than the absolute right to the property.If a nominal owner disposes of the property with property rights,he has the right to dispose of it.If a nominal owner disposes of the property held on his behalf without authorization,the disposal is effective unless the dormant owner can prove that the nominal owner and the property transferee are in malicious collusion.If the property right directly belongs to the dormant owner,the dormant owner can dispose of the property directly.If the nominal owner disposes of the property without authorization,he has no right to dispose of it.The transferee of the property may change his right only if he meets the requirements of acquisition in good faith.The enforcement of the nominally-owned property is also related to the ownership and change of the right of the property.The main problem in the enforcement practice of nominally-owned property is whether the dormant owner can claim the exclusion of enforcement when the creditor of the nominal owner applies for the enforcement of nominally-owned property in order to realize his creditor’s rights.There are different judgment views,which reflect different value judgment conclusions.The choice of value cannot be divorced from the norms of the current law,we should measure the interests based on the institutional interests of the current law.The institutional interests here are actually the interests embodied in the relevant legal rules on the ownership and change of property rights in the current law.On the issue,we should firstly clarify the ownership of the nominally-owned property.If the property right(absolute right)belongs to the dormant owner,it should be considered that the dormant owner has "substantive rights and interests sufficient to exclude execution",so it has the right to claim to exclude the enforcement of the property that claimed by the creditor of the nominal owner.If the property right(absolute right)belongs to the nominal owner,it is necessary to distinguish whether the property is real right of real estate or equity and other property.For the real right of real estate with registration as the right acquisition element,the legal level does not make special provisions on the enforcement of the property nominally held by the other person.Therefore,it is generally believed that the dormant owner only has the creditor’s rights based on the name-borrowing contract.Generally,in order to maintain the institutional interests of priority of real right and equality of creditor’s rights,it should be recognized that the dormant owner does not have the right to exclude the enforcement of the nominally-owned property.However,according to Article 28 of “the provisions on reconsideration of implementation objections ”,the real estate purchaser who meets certain requirements has the expectation right of real right and can claim the exclusion of enforcement.Similarly,in the field of real estate nominally held by the other person,when the name-borrowing contract is terminated or based on the contract,the dormant owner has the right to require the nominal owner to transfer the real right of the real estate nominally held by the other person,and actively claims the right to the nominal owner.If the real right of the real estate is not changed and registered in the name of the dormant owner in time,it cannot be attributed to the dormant owner.At this time,the right of the dormant owner and the real right expectation right of the real estate buyer should be made the same value evaluation.The dormant owner can be allowed to claim the exclusion of enforcement by referring to the rules applicable to the above judicial interpretation.In terms of the enforcement of the equity held by a limited liability company,since it is more in line with the provisions of the company law and the development trend of the company system to determine the ownership of equity to the issuer,while the dormant owner only enjoys the creditor’s rights to the issuer,in order to safeguard the company’s institutional interests related to the ownership rules of equity and the principle of equality of creditor’s rights,the dormant owner has no right to claim the exclusion of the enforcement of the equity applied by nominal owner’s monetary creditor.