Research On The Status Quo Of The Validity Determination Of Parents’ Mortgage Of Underage Children’s Real Estate

At present,more and more minor children have acquired the property with their ownership through inheritance,gifts from others,etc.What followed was more and more cases in which parents mortgaged their underage children’s real es tate in practice.From the data analysis of such cases,the period of high incidence of such cases also came with the boom in the housing market.And in recent years,a relatively representative case has been formed.Judging from the trial level experience d by such cases,the appeal rate is higher than that of general mortgage cases,indicating that there are more disputes in practice for such special mortgage cases,which are more worthy of in-depth study.Considering the irregularities of private lending,the analysis of the court’s judgment is limited to the disputes over financial loan contracts in such cases.From the analysis of the judgment results of the sample cases,it is found that the core focus of such cases is how to judge the validity of the m ortgage behavior.After sorting out the court’s decision thinking,it is found that the standards for judging the interests of minor children are different,the dispute over the nature of Article 35,paragraph 1 of the Civil Code(or Article 18 of the Gene ral Principles of the Civil Law)and the choice of path for determining the validity of defective acts This has become the reason for the different views on validity determination in such cases.Judging from the current overall legal system in my country,the legislators have shown a slanted position of protecting the interests of minor children.Therefore,the position of analyzing such cases should be based on considering the interests of minor children and maintaining transaction stability and the intere sts of creditors.as a supplement.Based on this,the criteria for judging interests in such cases should exclude the subjective wishes and indirect interests of the children and only consider whether the mortgage can directly benefit the children,and suc h benefits are not limited to economic interests,within a reasonable range there may even be a loss internally.Regarding the disputed nature of Article 35(1)of the Civil Code,it is more reasonable to abandon the view of mandatory provisions and to choo se restrictive ones.After the mortgage of the immovable property involved in the case is identified as a defective act,it is not appropriate to adopt the idea of disposition without authority or abuse of agency power to determine the validity of the ac t,but to choose the idea of agency without authority,and exclude the application of apparent agency and ratification rules,making defective mortgages.The effect of the act is directly attributable to invalidity,and the introduction of the responsibi lity system of the fault guarantor protects the interests of the creditor to a certain extent.Only by adopting a prudent attitude in the determination of the validity of the behavior in the case of the mortgage of the property of the minor children can be tter balance the relationship between the protection of the interests of the minors and the stability of the transaction.