On The Legal Effect Of Minor Real Estate Mortgage

In recent years,many guardians have purchased or purchased immovable property directly under the influence of the“restricted purchase”policy,and will directly register or donate their purchased real estate under the name of the minor under supervision,resulting in the minor being purchased and becoming the real property.Owner.Since a minor is a person without civil capacity or a person with limited capacity for civil conduct,under the influence of age and social experience,he cannot manage the real estate under his name well,plus the minor who is legally allowed to guard the guardian.The property is managed,so the real estate of the minor in practice is controlled and controlled by the guardian,which leads to many legal issues related to this.Taking 2015 to 2018 as the time span,the author analyzes the relevant judicial cases of the real estate mortgage of minors in China,and draws the characteristics of more conflicts of appeals and diversity of debt types in this kind of cases in China,and finds that the real estate mortgage of minors is There are two controversial issues in the judicial application,which are manifested as disputes over the effectiveness of the guardian’s real estate mortgage under the guardian’s name,and the“non-minor interest”is controversial.The issue of the effectiveness of real estate mortgages under the guardian’s name of the guardian is specifically divided into two types,namely,the guardian mortgages the minor’s interests and the guardian does not mortgage the minor’s interests.Based on the relevant provisions of the General Principles of the Civil Law,in the case of a judicial case,it is found that the guardian is privileged for the benefit of the minor,and its effectiveness is valid without exception,but when the guardian is found to be collateral for the benefit of the minor,There are controversies in the effectiveness.At present,there are four general views in practice: the path based on the management compulsory statement is valid,the path based on the unauthorised agent is invalid,and the path based on the mandatory rule is invalid.The path of the disciplinary action determines that the mortgage effect is to be determined.In view of the fact that most of the minors of the guardian and the ward are family members,the combination of jurisprudence and rationality is based on the fact that the path based on the unauthorised agent is invalid,and the path based on the administrative compulsorydetermination is valid.When the benefits are damaged,the relief is insufficient,and the path based on the effectiveness of the mandatory assertion is invalid against the principle of good faith.The validity of the path based on the unauthorised disposition will be determined to neglect the interests of the minor.In the identification of “not for the benefit of minors”,we first analyzed the specific reasons why it is difficult to identify the interests of minors.Secondly,we divided the cases of mortgages for minors into private loans for family members.The company provides mortgages for non-family member debt collateral,mortgages for minors’ own debts,and a specific scientific analysis of the five types of debts for the purchase of the real estate mortgage,and concludes that the parties to the contract have priority if they have no conclusive evidence.Recommendations for judging the specific circumstances of cases in the interests of minors.Finally,through the real estate mortgage registration authority to strengthen the audit,the notarization system to reduce the transaction risk and substantially improve and clear the legislation,comprehensive measurement of the interests of minors and goodwill third party interests in the case of circumvention of minors real estate mortgage effect is not uniform The question was put forward.