Determination On The Nature Of Actions Of Embezzling Other’s Name To Sell Houses And The Legal Liability For Imposture

In practice, actions of embezzling other’s name to sell houses are existing. The impostor sells the house by thieving or exchanging the property ownership certificate and embezzling the identity of owner of the house. The imposture deceive the registration authority and complete the house registration. The house belongs to original owner or the buyer? This problem come down to the balance between static safety and dynamic safety of dealing. Although the phenomenon that an impostor performs legal actions often occurs, there is no consensus on the quality and legal liability of this actions, therefore, this is a complex problem. Because Article 106 of the Real Right Law of the People’s Republic of China does not formulate the different key components of obtaining real right in good faith depend on real estate and on personal estate, there are different viewpoints in theory. Some people consider applying bona fide acquisition, some people consider applying apparent agency by analogy. In judicial practice, judges continue to disagree over actions of embezzling other’s name to sell houses.Therefore, this article try to summarize the elements of actions of embezzling other’s name to sell houses, then analyze the possibility of applying bona fide acquisition or apparent agency by analogy. After that, by analyzing the legal liabilities of different legal subjects that involved in the actions, this article will seek the solutions to this problem. This article is divided into four parts.The first chapter will analyze two different types of actions of embezzling other’s name to sell houses through cases, summarize the nature of the imposture, aiming at establishing the foundation for the ensuing chapters.The second chapter compares different viewpoints on the nature of actions of embezzling other’s name to sell houses and its legal Liability. The scholars include German, Taiwanese of China and scholars in mainland China.The third chapter analyzes the possibility of applying bona fide acquisition from four aspects, including the validity of the house-selling contract, prerequisite of bona fide acquisition, standard of good faith and cost of risk prevention. Draw a conclusion that it cannot be applied to the actions of embezzling other’s name to sell housesThe fourth chapter shows the possibility of applying unauthorized agency by analogy because of the similarity of legal effects between imposture and unauthorized agency, though it cannot be applied directly. If the buyer is bona fide and the owner of the house is responsible for the cause of actions of embezzling other’s name to sell houses and forming of right appearance, apparent agency can be applied by analogy, the buyer can take the ownership of this house with no need for ratification.The fifth chapter mainly discusses the protection for buyers with good faith and the liability of legal subjects which including parties and the registration authority.