Research On The Legal Effect Of Parents Mortgage Real Estate Under The Name Of Their Minor Children

In the modern society of rapid economic development,with the rapid development of the economy and the rapid improvement of living standards,the wealth of the family makes the parents begin to invest more financial and human resources in the minors,which leads to a new phenomenon,that is,the minors begin to own more property,especially in recent years,which is gradually increasing,even becoming a common social phenomenon.Family elders have become accustomed to the transfer of their own property to the younger generation,as a manifestation of the younger generation's love,this practice is not to blame,but when the elderly need to mortgage the property,the problem arises.Because Pen property is still under the name of minors,when the elders mortgage the property,how to determine the mortgage has not formed a unified and clear opinion in the judicial practice,which leads to the emergence of the phenomenon of different judgments in the same case in practice,which is extremely unfavorable to the construction of judicial credibility,to be solved by the theoretical and practical circles.The first chapter of this paper through the analysis of 138 cases collected about parents mortgage minor children's real estate,it is clear that the court in the trial of such cases used in the four judgment views,namely,the theory of recognition of validity,the theory of no right to be judged,the theory of mandatory provisions of validity,the theory of no right to be represented.These four different judgment views have led to a variety of judgment results in these 138 cases,and each view has some defects,which is not conducive to the maintenance of judicial credibility.The second chapter of this paper through in-depth analysis of the court's four adjudicative views,it is concluded that there are some defects in each view,for example,the defect of recognition of validity lies in neglecting the protection of the interests of minors;the defect of non-authoritarianism lies in how bona fide third parties conclude that the interests of minors are too neglected and pay attention to the protection of transaction security;the defect of effective mandatory stipulation lies in the uncertainty of the determination of the nature of the law;the defect of non-authoritarianism lies in the possible existence of apparent agency.By analyzing the defects of the four viewpoints,the author makes it clear that the root causes of the different ideas of adjudication lie in the imperfection of legislation and theinconsistency of the standards of judicial adjudication.After that,I try to put forward the solution of this kind of case under the existing legal framework,in order to provide some help for the decision of the case.The third chapter of this article through in-depth understanding of the Japanese law,German law,French law on the minor children's real estate legal provisions,drawing on the advanced experience of it put forward the "establishment of special administrator system,clear judicial standards,improve the relevant laws" legal recommendations,in order to provide their own suggestions for the proper solution of the problem.