To Avoid The Restrictions On Borrowing Name To Buy A House Of Effectiveness Research

Countries to regulate the real estate industry to solve livelihood issues and promulgatedthe notice of “the state council concerning firmly curb the property price hikes in some cities"after purchase measures. The phenomenon of borrowning name to buy a house is common.While the parties to the building business contract is the true meaning of said, theeffectiveness of the law of ideological behavior constraints, but between borrow name agreedby the parties in the event of a dispute, it is the focus of dispute. Borrow the name contractclearly violates the state restrictions. It is thought that the contract effectiveness don’t accept,because of the restrictions and so belong to the state policy, not illegal. Another argument isthat should be ruled illegal, But investigate its reason is divided. The first reason to believethat the violation of the "law of contract"(2) of article52, item about "malicious collusionharm the interests of the state, the collective or the third party" and shall be void. The secondview believe that belongs to the third "in violation of the provisions of the laws andadministrative regulations of mandatory" is invalid. The third kind of view is that restrictionson is for the social and public interests, should be in violation of mandatory provisions oflaws and administrative rules and regulations and violate social public interests "monism"considerations to circumvent restrictions on contract effectiveness. In this paper, through twocases about building restrictions on provision of reference, which leads to the dispute focus,and from the "contract law" in article52(5), agent, and the actual practice of our currenthandle similar case, instructions to avoid restrictions on borrowing name to buy a house of theeffectiveness of the actions.This article is divided into there parts.The first part: case introduction. There are two cases.In first one,the contract under namewas valid so that the ownership of the house belonged to actual holder.In another case,suchcontract was of no validness and the house was owned by nominal party. In bothcases,according to administrative regulations,contract parties were not qualified to buy suchhouse.This behavior avoided policies, laws and regulations on purpose.But due to thedifferent understanding of law,the courts gave contradictory judgments. This paper points outthe focus of the two cases and discloses the existing problems in the judgments.The essenceof different judgments lies in various thoughts, the different illustrations of "contract law" in article52(5) and the clearly distinct agency relationships exist in the contract.Part two:the analysis about the validness of the behavior to buy a house under name foravoiding restriction order. This part is the key section. It explains the validness of the behaviorof buying a house under name from different aspects,namely contract, agency, and the currentpractical solutions. In contract aspect,the analysis is based on general contracttheories,"contract law"article52(5) and "contract law"article52(4).Meanwhile,it debateswhether it needs to differ these two items. It argues the effectiveness of the contract thatviolates laws and administrative regulations.The restriction order is deemed as managementalmandatory norm.As the writer concerned,if the contract infringes the public interest anddisobeys administrative orders,it is invalid.So the contract under name reaches these tworequirements. At the same time, in agent aspect, the writer divides nominal agent into directand indirect agent to discuss contract effectiveness. In the actual operation, a few provincesgave the guidance to the buying of a house under name and ruled the invalid contract.The third part: comments and suggestions on the disputes of buying house under toavoid restriction order. The writer analyzes the cases again according to relevant theories tosort out problems in judgments and builds own viewpoint. Meanwhile,basing on the issuesreflected in two cited cases,this paper outlines many suggestions on solutions. Thesesuggestions have four respects: a policy is joining the legislation content policy for a longtime,strengthen the ability of judge applies the law,the haosing registration authority strictlycarry out property management, implement effective real estate regulation policy. Suggestedby "price law" adjusting room real estate,the implement of the autonomy of the marketeconomy to lead the government increases the affordable housing supply for balancingdemand and supply.