| In recent years, the rapid economic development in our country, especially in the real estate industry, house prices are Fried higher and higher, residents have no room to live, can’t afford to buy room phenomenon more and more common. In such a context, many people began to play the idea of building up others. There are a group of people, they by acquiring ownership of house property ownership certificate, as homeowners identity or someone to pretend to be homeowners identity, will house transfer to a third person and cheated to transfer registration departments, to get illegal profits from it. This kind of behavior in the damage the interests of the ownership of the original house at the same time, also brought huge risk to a third person. But our country’s current law does not regulation for such behavior, in the judicial judgment, the judges also don’t know how to deal with, like blind men often appears the phenomenon of different connection with the given. Likelihood is writing this paper, the author has the district court to 《impersonate the effectiveness of the building business contract》for regulation, this phenomenon also shows the justice department has admitted to such behavior the fact that the lack of legislation and law is introduced to make up for the loopholes in the form of local judicial interpretation.Although our country law regulation to this kind of behavior has not yet, but the academic circles are discussed for a long time. Scholars to the existing legal framework to solve these problems, therefore appeared two kinds of voice: part of scholars believe that can to solve this problem within the framework of good faith, the other part of scholars put forward can on applicable to unauthorized agency behavior rules to solve the problem, of course, there are also many scholars of the two kinds of skepticism and negative attitude. On this issue, the German scholar’s discussion lasted much longer,Medicus Lu Mei etc famous scholars have their own opinions. German scholars made should be within the framework of agent method to solve the problem of such consensus, but the specific how should apply, also is still controversial. On this kind of behavior is not only the law, therefore, is not clearly defined, the academic circles to the nature and method of effect of such actions did not reach a consensus.For this, based on the real estate imposture as well as the 《general principles of the civil law》, 《property law》, 《contract law》in law about the good faith and unauthorized agency system as the research object, combined with learns and legal theory, the principle of comprehensive, typing method, by applying the method of system explanation system of history study, national legislation comparison method, the research methods, such as the legislative purpose of study on behavior nature, the method of imputation, the effects of the parties such as progressive transformation are discussed.First of all, this article first to the real estate impersonate behavior definition and category of law to determine, in order to make clear the scope of this article discussed. The fake identity, forging others’ signature; Dispose of the disposition of real estate; Trading counterpart to pay a reasonable price; Deceive the registration department, has carried on the real estate registration of change. Secondly, this article will discuss academic impersonate the behavior of the real results summarized into four categories: apply real estate in good said, agent, eclecticism and the bona fide acquisition and agent said.Then, this paper analysis the real estate pseudonymous disposition for real estate bona fide acquisition system, real estate pseudonymous disposition behavior and so on for the feasibility of the system of real property shall not be entitled to agency. In the first set of contrast, the author analysis the system of real property in good can only register for mistakes happen for its elements, but real estate imposture does not have the register error; Real estate imposture of dispose and 《property law》 the 106 th of our country has no right to dispose of the concept of《 criminal law》 different; Real estate imposture risk between the celebrity and the other party in the contract shall be invalid, does not conform to the system of real property in good hidden constitutive requirements. In this that real estate imposture shall not apply to the good faith system. In the second group contrast, starting from the method of application, the writer analysis the real estate pseudonymous disposition and unauthorized agency in the pursuit of real property, the behavior of the main legal principles and elements are consistent, can meet the requirements of application, it is concluded that real estate pseudonymous disposition can conditionally on the conclusion of applicable estate unauthorized agency system. Finally, the article within the framework of the unauthorized agency system applicable to real estate impersonate disciplinary actions on are analyzed. Through comparing real estate ownership of the two and the third person can blame , draw the conclusion:(1) in the name of carrier can blame is greater than the relative person, the real estate pseudonymous disposition effect the following method: 1, when the other party claims impersonate the effectiveness of the actions, nominal carrier is set by the carrier on behalf of the rights and obligations of bear, performance in the name of the carrier to assume risk celebrity dispose of real right of realty in the name of carrier consequences. 2, because take celebrities posing as the name of carrier status dispose carrier in the name of real estate, in the name of carrier after bear on the consequences of the other party, thus caused by the loss, in the name of the carrier shall have the right to take to recover the celebrity. Real estate registration organ at a celebrity to the name of carrier and the other party’s loss supplement responsibility.(2) in the imputation of the name of carrier is less than the other party or the name of the carrier and the other party didn’t be imputation, real estate imposture effect the following method: 1 ratify the contract, if the name of the carrier, is real estate disposition in the name of carrier and the effectiveness between the other party; 2, the other party before the carrier on behalf of ratification shall have the right to demand that, before the other party in good faith in the name of the carrier ratification shall have the right to withdraw its meaning; 3, if the name of the carrier shall not be absent ratification by the pseudonymous liable to the other party. In particular, can ask to take a celebrity contracting negligence responsibility, and compensate the loss of reliance interest. Real estate registration organ at a celebrity to the name of carrier and the other party’s loss supplement responsibility. |
PDF Full Text Request