A Study On The Validity Of Guardian's Mortgage Of Minors' Real Estate

Minors are legally independent individuals and enjoy personal rights and property rights,but their civil capacity is still lacking,and they cannot fully protect their rights and interests on their own.Thus,the guardianship system and legal agency system are born.In actual life,the real estate registered under the name of the minor is controlled and managed by the guardian.This leads to frequent cases of the guardian's mortgage of the minor's real estate.This is related to the legal rights and interests of the minor and its counterparts,and a series of Legal issues.Although,Article 35,paragraph 1,of our country's Civil Code stipulates that “the guardian shall not dispose of the property of the ward except for the protection of the interests of the ward”,the judiciary's determination and theoretical discussions have been unable to reach an effective consensus on the effectiveness of the guardian's mortgage of the property of minors.Based on this,this article starts with the basic theories of civil law,combined with relevant cases in judicial practice,and launches specific research.First of all,the opening chapter introduces five typical judicial cases and sorts them out.It points out the current dispute about the determination of effectiveness,namely,there are two completely different situations of determination of validity and determination of invalidity,reflecting the judicial status of different judgments in the same case.Then summarize the basis of the judgment and analyze the reasons for the judgment: the theory of agent ratification according to law,the theory of mandatory management regulations are determined to be valid,the theory of violation of the mandatory regulations of validity,the theory of no right of punishment,and the theory of no right to agency are invalid,and explore the reasonableness of them.And insufficient.Then,this article starts from the legislative and judicial levels to explore in depth the reasons for the controversy of validity determination: From the legislative point of view,the provisions of Article 35,paragraph 1,which most of the existing cases are based on,are too general and not limited.The meaning of “disposal” is not to clarify the right limits of the guardian's property guardianship “to protect the interests of the ward”,nor to specify how effective the real estate mortgage will be when it violates this paragraph.From a judicial point of view,existing cases fail to seek the most appropriate value choice in the value conflicts that are most beneficial to minors and protect transaction security,and fail to unify the applicable standards specified in Article 35,paragraph 1,including whether Applicability and how to apply,that is,whether it is based on the attributes of effectiveness or management mandatory regulations,or based on the attributes of external authority or internal responsibility.Finally,in order to improve the determination of the effectiveness of the guardian's mortgage of minors' real estate,this article puts forward relevant legal recommendations: First,it is recommended to publish guiding cases to clarify the basic thinking of the judgment.Second,unifying the basic principles of adjudication,give priority to the principle of the most beneficial to minors,affirming minors' ownership of the real estate under their names,and at the same time standardizing the review obligations of counterparts,and protecting the bona fide counterparts as much as possible.Third,determining the necessity of the application of Article 35,paragraph 1,and The way of legislative interpretation is to clarify the "disciplinary" and "in order to protect the interests of the ward" to make the regulations more complete and specific.Fourth,starting with the agency system creatively,and "except for the protection of the interests of the ward" and the mandatory requirements.Regardless of the necessity of the proof,it should be characterized as an external authority clause,and the rules of docking without authority.In order to solve the problem in a more targeted manner,avoid similar disputes in the future,ensure the fair and reasonable resolution of disputes,and improve the quality and efficiency of judicial trials.