Research On The Legal Effect Of The Contract And The Ownership Of The Houses Purchased Under Others' Name

The phenomenon of borrowing other people's names to purchase houses is ubiquitously prevail in reality,which often gives rise to numerous legal disputes.This article is composed of four parts,mainly researching on the validity of the contract and the ownership of the houses purchased under other people's names.The first part tries to find the focus of disputes of the cases that borrowing others' names to purchase house property on the basis of our country's judicial practice and legislation.The registration results in deviation of the registration obligee and the actual right holder.In consequence,the two parties would have a dispute arose over the the ownership of the house.For example,in the case of buying economical affordable house under others' names,the side who pays the house often claims the ownership of the house property based on the agreement,without real estate registration,while the name-lender would claim that the agreement violates the public order and morality and the housing security policy so that it should be null.These proposition involve the issues of the nature and effects of the agreement,and of the ownership of the house.Owning to the lace of legislation,there are still controversies on the academic and judicial practice about the issues mentioned above.The second part is about the nature and validity of the name-lending contract.Due to the fact that the act of borrowing someone else' s name to buy a house has not been clearly defined in our country's legislation,the name-lending contract has been recognized as a kind of anonymous contract.Seen from the legal relation between the borrower and lender,the latter is obliged to use his or her name to buy house property and make registration,but have no obligation to govern and dispose the house.In hence,the two parties are not fiduciary relation,but trust and clientage according to the article 396 of the Contract Law.When it comes to the relations among borrower lender and the house seller,things have be be explained under different situations.If the lender conducts the house property transaction with the seller,the legal relation between the borrower and lender can be interpreted as the Entrusted Agency.If it is the borrower who signs the sale contract with the seller,the relation between the borrower and lender is just a name-lending which has no connection with Entrusted Agency.In the third part,the author intends to make a typology study on the validity ofthe contract of purchasing houses under others' name.Generally speaking,a binding contract should meet the requirement of the intentions of both sides and the legitimacy of the civil juristic acts.In concrete case,the effects of the contract is usually admitted if the two parties' intentions are genuine and without the invalidation situations under the clause 52 of the Contract Law.In cases where houses are bought under the guise of avoiding housing policy,there are more complicated considerations shall be taken into account while in the determination of the validity of the agreement.In the background of housing restriction policy,the policy factors become the objective obstacles for the borrowers to ask the lenders to transfer the ownership of the house,which will not affect the validity of the name-lending agreement.In the case of purchasing the economical affordable housing,the housing security policy has no impact the contract's validity.However,the economic affordable house is closely related to public interests,the contract may be deemed invalid.In cases where parents purchase houses in the name of their minor children,it still meets the Statutory Agency when the parents represent their underaged children to reach a name-lending agreement with themself,within which there is no interests conflict.Therefore,the agreement between the minor children and their parents is formed and effective.In the last part,the author probes into the ownership of the house registered under the lender's name.According to article 6 of the Real Right Law of our country,registration is the legal basis for judging the ownership of the real estate.In the case buying house under other people' names,the house property transferring has come into effect on the grounds of a binding housing sales contract and real estate registration.Because the house is register under the lender's name,the law presumes the house real right belongs to the lender.The hole process of real right change has been little concerned with the agreement between the borrower and lender.Besides,for the actual right holder,because the change of the ownership of the house has not been carried out in accordance with the pattern of real property right change,he can not claim ownership to the house on the basis of actual possession of the house,he can only claim creditor's right by asking the registration obligee to transfer the house property.Before this,the registration obligee is the proper owner of the house.