Research On The Legal Implications Of Registering Houses By Borrowing Others' Name

The phenomenon of registering houses by borrowing others' name has a long history.With the introduction of real estate transaction policies such as affordable housing,purchase restriction orders and loan restriction orders,the number of such cases has increased significantly.Due to the lack of clear legal provisions to guide,judicial practice presents different judgment reasons and rules when handling disputes over registered housing under the name,and the confusion in the application of the law is difficult to achieve the effect of judicial settlement of disputes.Based on this,this article will find the crux of judicial practice in conjunction with relevant jurisprudence.Through theoretical analysis of the nature and effectiveness of the loan registration contract,the subject of the housing sale contract,and the ownership of the property rights in the house,it will provide a reasonable and effective way for judicial practice to handle such disputes.This article is mainly divided into the following four parts:The first part mainly expounds the current status of judicial practice in the case of housing registration by borrowing others' name.Depending on the source of the registration name of the celebrity,this type of case can be divided into two main types:Case 1 is the celebrity obtains the house registration name from the celebrity,and Case 2 is the celebrity obtains the house from the seller.Judging from the status of judicial rulings,most courts evade the definition of the nature of the loan registration contract and directly transition to the judgment of its effectiveness.Especially when the contract of deed registration involves the housing transaction policy,based on different understandings,the court's judgment on the validity of the contract presents different processing rules.Regarding the ownership of houses,the court also has twocompletely different opinions.The first view is that the effectiveness of the public letter generated by the registration of real estate should be maintained.The celebrity is the owner of the house.The second point of view is that the real property rights enjoyed by the borrower due to the actual capital contribution should be affirmed.When the borrower has sufficient evidence to overturn the real estate register,the borrower should be the owner of the house.The confusion of adjudication rules and reasons leads to the aggravation of different judgments in the same case.Therefore,it is necessary to clarify the problems in practice in theory.The second part mainly discusses the nature and validity of the contract of registration by borrowing others' name.Regarding the nature of the contract for registering by borrowing others' name,there are currently four positions in the civil law community in China,namely,the theory of abandonment,the theory of negative trust,the theory of unnamed contract,and the theory of distinction.Through argumentative analysis,this article believes that the nature of the contract of registration by borrowing others' name cannot be completely defined as violation of law,and should not be confused with the act of trust.It should be divided into two situations according to the content of the agreement:firstly,when the celebrity only needs to provide a name,and the borrower uses the name of the celebrity to sign the contract and go through the house transfer registration and other related procedures,it's an unnamed contract,and it's not similar to the entrusted contract in terms of its constituent elements.Sex,it should not be analogized to apply the provisions of the commission contract;secondly,when a celebrity not only needs to provide a name,but also needs to personally sign a contract for the borrower and go through relevant procedures such as house transfer registration,the contract is essentially an entrusted contract.Regarding the determination of the validity of a registered contract by borrowing others' name,this part mainly discusses the expression of intention between the parties and whether there is a ground for invalidity of the contract.Especially for the issue of whether the borrowing registration contract in violation of the housing policy violates the public interest,this article advocates the introduction of the principle of proportionality,which aims to provide the court with operable rules of determination while limiting its discretion.The third part mainly discusses the legal effects of the contract between the actor and the seller.In the case of purchasing a house by borrowing others' name,this issue was discussed in order to clarify the subject of the house sale contract.When the borrower uses others' name to sign a contract,it needs to consider the perspective ofautonomy and trust protection.When the seller has the trustworthy interest and is only willing to conclude a contract with the celebrity,the sales contract should be established between the celebrity and the seller;when the seller knows the condition,it is necessary to explain the intentions of both parties;when the seller does not care about contracting with whom,the sale contract is established between the borrower and the seller.When a celebrity signs a contract in his own name,we can use the indirect agency system in the civil law system,and the celebrity will first bear the legal effect of the contract,and then the effect is transferred to the celebrity by the internal borrowing agreement.Because Articles 402 and 403 of the Contract Law are the mixed products of the two major legal system agency systems,which have their own defects in terms of the system position and the content of the articles,this article argues that,it is inappropriate to apply these two provisions to identify the legal effects when celebrities have concluded contracts in their own names.The fourth part mainly discusses the ownership of real property in the case of registration by borrowing others' name.This article advocates that the creditor's rights contract as the cause should include the intention to generate claims and debts and the intention to generate real rights changes.For case one,when the celebrity obtains the name of the house registration from the celebrity,the house ownership does not change because the name registration contract does not include the effect of the transfer of property rights,and the borrower should be identified as the house owner.For case two,when the celebrity obtains the name of the house registration from the seller,if the house sale contract is established between the celebrity and the seller and is legally valid,after the house transfer registration under the celebrity name,the celebrity As the owner;if the house sale contract is established and legally valid between the borrower and the seller,and at the risk of the borrower's own risk,in the interest of promoting the realization of the transaction purpose and curbing the benefit of the registration of the borrower,this article advocates The house sales contract is interpreted as an altruistic contract,so that the celebrity is the owner of the house and meets the requirements for the change of real rights.At this time,the borrower can still request the famous person to assist in the registration of the house transfer according to the loan registration contract.