| With the acceleration of economic development, more and more people seek new financing channels to get more money in a short time. Because of long personal housing loan cycle, slow money collecting, preferential interest rates etc, some people began to take risks, using a fraud business contract to get money from the bank. Through my internship in the court of Shanghai Chang Ning district, I found that, for example, the number of fraud contract case accounted for 3.85% of the total contract dispute in 2009, but the number increased to 18.75% by 25 th, June, 2012. Fraud house loan contract involves a large amount of evading the legal issues; it also greatly harms the healthy development of the real estate market.More and more fraud housing contract cases go to court, but we are still lack of related legislation, and even our country jurists also have little debate on the issue. In front of these cases, the court does have many difficulties, especially for the search of applicable law.Due to the discussed fraud cases’ type is simple, the legal relationship involved is unified, I chose a typical case to expend and articulate the related analysis in order to have a clearer solution. In this paper, the main framework and the content are as follows:The first part: Firstly, I introduce the cases by basic case background, content of trial and logic of court’s decision, by which I further put forward my own views for the lack of court’s incomplete discussion on the case. Then I listed two other disputes and reflected this case involving triple legal relationships by a simple chart.The second part: I summarize the focus of dispute in the case:(a) to buy or sell the sale and purchase contract signed by both parties and the validity of the agreement;(2) the contract concluded between the buyer and the bank loan and the effectiveness of the mortgage contract issue;(3) the bank’s loss of housing mortgage. Then, I start to analyze around three disputed points one by one.The third part: I do a deep and comprehensive analysis of the case.At first, I did an analysis on the case’s dispute “the effectiveness of the fraud contract and applicable law". I introduced the civil laws of several typical continental law system countries. Then, according to general seeks the hypocrisy of related theory to the analysis of existing in the judicial practice in China, I offered some points of view to see it is reasonable or unreasonable.Secondly, I did an analysis of another problem " the effectiveness of loan mortgage contract and applicable law problems". In this part, I mainly discussed the effectiveness of the loan contract to see which law is more applicable. Finally, I did an analysis of the third controversy "whether Banks will lose the control of housing mortgage". In this part, I pay more attention on the basis of good faith system of housing mortgage problems.The last part: I have a full analysis on the fraud business cases to search and provide a feasible solution for the kind of cases. Finally, I also extend to discussion on the problem of related legislation in our country, and put forward some superficial opinions just for readers’ reference. Key Words: Pretend behavior of conspiracy, In the form of legal... |
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