Research On The Force Of Law About Borrowing Name In House-Purchase Under The Background Of “restrictions”

With the rapid development of economy, it not only brings wealth but also widens the gap among people at the same time. For the buildings, the place for living, those who earn higher income spend much money in purchasing and they even regrate the building. But the low-to-middle earners can only borrow to buy a house; some even are hard to own a place to rest. The increasing prices of buildings has become the hidden peril even the sore spot of the people’s livelihood. The government has introduced the housing restriction policy to protect the people to live and work in peace and contentment, to realize the goal which every family have owned their buildings. However, the phenomenon which people borrow others’ name to purchase buildings is common. It’s inevitable to result in the complex disputes and the results of judicial decisions are also different. The act of purchasing building with others’ name, the case of the false registration caused by the applicant of real estate registration intentionally how to divide the rights and obligations between the actors and how to make up for the lack of system which play a important role on perfecting the relevant Contract Law and Property Law theory in the field of Civil Law and it’s also critical to maintaining the fair order of the property. The study of such problems will help to solve the related disputes in judicial trial processing, which is also significant to guide the judicial practice.The main ideas of this paper build on systemized antagonistic propositions respectively presented by both parties without the involvement of third party, while the two parts are divide into people who favor agreement as the legal force and people who support legal registration as the legal force.Besides, benign interaction between substantial law and procedural law is achieved, according to the analysis of creditors’ legal ground as to the right of claim with its operation principle and to the discussion under civil procedural law. Finally, suggestions under public law are proposed based on the analysis of the relation among house-purchase under others’ name, house-purchase restriction and registration system, to regulate the house-purchase under others’ name supervised by house-purchase restriction, in the field of both private law and public law.This article is divided into five parts except the preface and conclusion.The first part clarifies the basic concept of the act of purchasing building with others’ name and the relationships with relevant other systems. First of all, introduce the act of purchasing buildings with others’ name from the perspective of the concept, then draw the distinction between the similar act basing on the summary of elements. The identification of the agreement of actors is different between judicial practice and judicial theory, so the clear recognition of the nature helps to solve the related disputes and deal with the related interests among actors in the case of purchasing buildings with others’ name.The second part mainly discusses the effectiveness of act of purchasing buildings with others’ names in the background of the housing restriction policy. This part main analyzes the effectiveness in basis of the comprehensive judgments of the effect of the act of purchasing buildings with others’ names.. It’s inevitable to have impact and destruction on the relationship between registration and the housing restriction policy in the act of purchasing buildings with others’ names. So the identification the act of purchasing buildings with others’ names need base on the comprehensive analysis between such two systems. “The Effectiveness” and “The Ineffectiveness” theory are the mainstream point of view in judicial practice and theory, this paper main through objecting to the supporting reasons of “The Ineffectiveness” theory holds the effectiveness of the agreements of purchasing building with others’ name.The third part analyzes the legal problem between borrowers and lenders on the situation not involving the third parties. First from the summary of two kinds comparatively typical trial standpoint judicial in practice case, draw the different viewpoint on the interests disputes between borrowers and lenders. In the act of purchasing buildings with others’ names, the main interests disputes between the borrowers is the ownership of the property, and the judgments basis of ownership are nothing more the effectiveness of agreements between borrowers and lenders and the validity of the registration. The result of the game of the two eventually determines the judgment entity rules of the ownership of the property.The fourth part further analyzes the interests of purchasing buildings with others’ names when involving in the third party. The emphasis is on discussing whether the third parties can exercise their right of claim on the litigation-related house when they are the creditors and how to distribute the rights and obligations when they are Property developers. 1. when it involves the creditor, it will be divided into two parts to discuss due to the difference between the creditor of borrower and the creditor of lender in the act of purchasing building with others’ names. Analyze the creditor of lenders can’t exercise the rights of claim on property by the theory of the protection of bona fide third party and additional obligations to a third party, then analyzing the borrower can raise objection to the applications for enforcement of creditor of lender. Creditor of borrower may exercise the right of claim on the basis of the exception of the principle of contract relativity, and then discuss the problem of deregistration.2. In judicial practice, it’s difficult to deal with the other party in contract when the property developer is the third party, and from the prospective of contract relativity, the author attempts to discuss the application of the indirect agent system.In the fifth part, the author puts forward some suggestions to deal with house-purchase under others’ name. Reasons for frequent disputes over house-purchase under others’ name and for abstrusity of related lawsuits can be mainly analysed as following four aspects. Firstly, there are no specific regulations in civil laws to define and regulate the behavior of using others’ name, which perplexs the judicial adjudication. Secondly, political status and defects of house-purchase restriction are two elements which prevent the settlement of related disputes. Thirdly, negligence of registration authority in qualification examination, together with faultiness of correlative legal system, makes it possible for some people to find ways around the rules. Finally, there are no specific regulations which can be applied to penalize people who purchase a house under others’ name. Therefore, suggestions are put forward to deal with house-purchase under others’ name in a better way and to eventually eradicate such opportunistic practices.