Research On The Referee Rules Of Buying Houses In Another Name

Since 2010,the cases of buying houses in another name has occurred frequently in China.Especially with the rise of real estate economy,buying houses in another name has already got attention of local judicial organs.According to the Contract Law of our country,the parties are entitled to enter into contract voluntarily,and there is no entity or individual may unlawfully interfere with such right.However,the purpose of buying houses in another name are diverse,violation of laws subjectively may exist.And in the view of The Property Law,there is a state of inconsistency between "name" and "reality" of buying houses in another name which is contrary to the principle of demonstration of real right.So buying houses in another name is not accepted by law in some cases.In judicial practices appear the phenomenon of identical lawsuits with distinct judgment.In order to solve these problems,Beijing,Jiangsu,Guangdong and other cities have unified judgment standard in local jurisdiction through judicial interpretation,guidance,conference and other ways.But the problem involved are limited and different cities have different standards,so there exits differences in the effect of judicial practice.This paper combines academic views and analyzes the problems of buying houses in another name,expecting make reasonable guidelines.The paper is divided into five chapters:The first chapter gives a brief account of buying houses in another name.This chapter mainly analyzes the causes of the buying houses in another name,including circumventing state policy,enjoying dividends,hiding assets or avoiding debt,and so on.Then the chapter introduces the legal relationship between the parties,one is the external legal relationship formed between the buyer and the seller because of the purchase behavior,and the other is the internal legal relationship formed between the parties because of the loan contract.To clarify the rights and obligations of each subject through legal relations between the parties.Finally,the nature of buying houses in another name should refer to the application of the contract of entrustment of the relevant provisions.The second chapter mainly introduces the status of judicial practice,through the relevant issues in judicial practice to introduce the focus of this paper.The last three chapters of this paper focus on three issues found in practice,which are the validity of the contract,the ownership of the house,the legal relief of the borrower and the balance of the rights and interests of the parties.The third chapter discusses the validity of the contract of buying houses in another name and the basis of identifying the validity of the contract.This chapter is divided into four parts.First of all,according to our current legislation on the provisions of the validity of the contract to make a comb.For example,it is necessary to establish that there are at least three aspects of the relationship between the two parties,the actual investor and the possession and use of the house.Secondly,the chapter discusses the validity of the contract from the point of view of Article 52 of the contract law and analysis of the effect of contract form on contract effectiveness.Finally,according to the type of buying houses in another name to the judicial practice of the use and improper points to make comments.The fourth chapter discusses the ownership of housing.According to the view of "real right theory" and "creditor's right theory" and combining with the cases in judicial practice,"creditor's right theory" is more reasonable.When a third party is involved in buying houses in another name,it should first be made clear whether the act of the nominal to dispose of the ownership of the house belongs to the unauthorized disposition.If the celebrity has the right to punish,the rights of the third party can be protected,unless the third party and the nominal "maliciously colludes".When the house has not been transferred to the borrower,the outsider claims the right of the house from the issuer in the execution procedure,at which time the law gives priority to the protection of the interests of the third party.In the creditor's revocation action,the creditor of the nominal has no right to exercise the right of revocation to prevent the nominal from transferring the ownership of the house.The fifth chapter discusses the balance between the legal relief for the borrower and the rights and interests of the parties when the lease for the contract is invalid or revoked,which is of great significance to clarify the responsibility of the parties.This chapter discusses from two aspects.One is to make clear the three relief ways of borrower from the legislative level.One is focus on the value-added benefits of housing distribution to make a discussion.Whether the parties can obtain the value-added benefits of the house and the share of the distribution should be based on the final judgment of the ownership of the house in the case of buying houses in another name and comprehensive judgment according to the principle of fairness according to the specific case.