Research On The Ownership Of Real Right Of House Purchase By Borrowing Name

In recent years,there are more and more phenomenon of borrowing name to buy houses.The resulting disputes have gradually become a major difficulty in the judicial trial.There is no clear provision about this phenomenon in the current law,so the judgment standards of each court are different,which leads to the phenomenon of "different judgments for the same case" in judicial practice.In order to properly deal with the disputes over the ownership of the real right of borrowing a name to purchase a house,the premise is to make clear the effect of borrowing a name to purchase a house.The change mode of real estate property right in China is "agreement of creditor’s rights + registration and publicity of real estate property right".Borrowing name to buy a house involves a dispute over the ownership of the real right of the house,and the house belongs to real estate.Therefore,in this case,in addition to the real estate registration and publicity,the real right change also needs to have an effective legal act of creditor’s rights.There are two main contract relationships in the process of house purchase by borrowing names: one is the contract between the people who borrow name and the people who lend name,and the other is the contract between the people who lend name and the house developer.In fact,to clarify the effect of borrowing name to buy house is to clarify the effect of borrowing-name contracts and the effect of housing sales contract.In judicial practice,there are not many disputes about the validity of the house sale contract,but there are many disputes about the validity of the name borrowing contract.As for the effectiveness of borrowing-name contracts,specific issues need to be analyzed.If the name borrowing contract only violates the qualification restrictions of national policies,and does not violate the mandatory provisions of laws and regulations and the social public interest,then the contract is valid,otherwise,it is invalid.The invalidity of the loan contract means that all the creditor’s rights and debts between the borrower and the famous person are eliminated from the beginning,and the borrower shall not claim the relevant rights according to the contract.At this time,housing registration in the name of famous people,because the real estate registration has a presumptive effect.Because the house is registered in the name of people who lend name,when there is no evidence to the contrary,the registered oblige is presumed to be the real owner,and only according to the return liquidation rules,it has the obligation to return the property contributed by the people who borrow name.If the borrowing-name contract is valid,in principle,when the third party is not involved,the real right of the people who borrow name shall be protected preferentially,that is,the house belongs to the people who borrow name.Because the presumptive power of real estate registration is not absolute,and the property law and its corresponding judicial interpretation stipulate the relief way of factual property,so the protection of factual property has theoretical and legal basis.If the people who borrow still does not have the qualification to buy a house until the litigation due to the policy of purchase restriction,the court should not make a right confirmation judgment or ask the people who lend name to assist the people who borrow name to change the registration before the people who borrow name obtains the qualification to buy a house.But the people who borrow name enjoys the real right rather than the creditor’s right in the house involved in the case.The real right of fact should still be protected to some extent.The borrowing contract is valid,but when it involves the third party,the third party shall obtain the house ownership on the premise of satisfying the conditions of acquisition in good faith.