Legal Issue Study Of Transferring Real Property With Fake Identity

Recently, the spouse, children, friends and tenants of house owner or evenirrelevant persons make illegal profits through obtaining the owner’s house title topretend to be the owner for house transfer while the house transferee has no idea ofsuch pretence (The behavior of transferring real property with fake identity,hereinafter referred to the “Behavior”). The Behavior not only infringes the owner’srights but also puts the transferee in huge transaction risks. However there are norelevant laws or regulations in China regarding the Behavior for judges to rule thecase as a standard. Therefore the same cases are usually ruled differently in People’sCourt. Some scholars hold the opinion that the Bona Fide Acquisition System canbe applied to the Behavior or the Agency by Estoppel System can be applied byanalogy to the Behavior, while others hold the opposite opinion. This articlecombines the knowledge of science of civil law and logic theory, comprehensivelyuses methods of systematic interpretation, genre analysis, legislative history analysis,antithesis, legislative purpose analysis, case study and extreme analysis to study thesubject matter including but not limited to the Behavior, Article106of PRC PropertyLaw and Article49of PRC Contract Law in areas of behavior nature, relevant FaithProtection System, social influence and legal consequence step by step based onexisting materials and legal theory and as a result, reaches a conclusion that the FaithProtection System should not be applied to the Behavior in principle, but the Agencyby Estoppel System may, in certain cases, be applied by analogy to the Behavior.To be more specifically, this article firstly explains the type and character of the Behavior, namely, the cheater pretends to be other persons, forges signatures of othersand transfers other’s real property or transfers the real property with certain rightsrestricted, the transferee was in good faith then and has paid reasonable considerations,and the relevant authority was cheated and thus accepted the transfer registration.Secondly, this article compares PRC Bona Fide Acquisition System with PRC Agencyby Estoppel System regarding the Behavior, reaching a conclusions that (i) in theevent of right of real property transfer is restricted, there exists indirect cheater, whichis inconsistent with the initiative requirement of “having no right to transfer the realproperty” of the Bona Fide Acquisition System;(ii) the name of the cheater is not onthe registration book, which is inconsistent with the basis of trust of the Bona FideAcquisition System;(iii) the relevant transaction of the Behavior is illegal due tocheating behavior and should be excluded from application of Bona Fide AcquisitionSystem with reference to the legislative purpose of the Bona Fide Acquisition System;(iv) the cheater uses other’s identity for house transfer, which is different from“transferring in ones own name” required by the Bona Fide Acquisition System;(v)the Behavior usually has a structure of two parties, which is inconsistent with thestructure of three parties of the Agency by Estoppel System;(vi) the cheaterapparently and essentially uses other’s identity for house transfer, which is differentfrom “acting on behalf of the principal”;(vii) the Behavior lacks the type ofRechtsscheinhhg limited by the Agency by Estoppel System; and (viii) the houseowner has no Zurech-enbarkEit. Moreover, this article reaches the conclusion byfurther observing social influence of Faith Protection System. This article finallyreaches the conclusion of legal consequence of the Behavior that the transfer contractis formed but yet to be effected when the Agency by Estoppel System is applied to theBehavior, otherwise the transfer contract becomes invalid with a compensation in typeof legal liabilities for breach of contract and other remedies from relevant authoritybeing responsible for its own fault.