The Study On The Judicial Rules On Disputes Over Purchasing House By Borrowing Other's Name

Purchasing house by borrowing other's name is a relatively common phenomenon nowadays which contains high risks.For the achievement of the name-borrower' purpose,both a validly-existing contract of borrowing other's name and the fully and faithfully performance by the name-lender in the future are necessary,which are obviously uncertain.As a result,disputes arise from it.However,the judicial department fails to establish uniform judicial rules regarding such disputes.For the purpose of helping the judicial department settling such disputes legally and efficiently,this article endeavors to provide legitimate,logical and reasonable answers to the legal issues about purchasing house by borrowing other's name in terms of empirical study and theoretical analysis.This article is divided into four chapters and the contents of each chapter are as follow:The first chapter is based on the empirical study on the cases of purchasing house by borrowing other's name.The purposes of purchasing house by borrowing other's name varies from case to case,which have effects on the attitudes of the courts towards the issue of whether purchasing house by borrowing other's name is allowed.Many courts tend to believe that the contracts of borrowing other's name with the purpose of purchasing affordable house or escaping house purchase restriction are null and void based on different judicatory ground,while the relatively common oneis that such contracts are violation of laws or such contracts damage the public interests.With respect to the housing ownership,there are two distinct opinions.The one is that the name-borrower shall be the owner of the house because the name-borrower actually pays for the house,while the other one is that the name-lender shall own the house because the fact of borrowing name can only produce an effect of obligation,which means the name-borrower is not entitled to bring a lawsuit to confirm its ownership of the house.However,the both opinions are based on weak arguments.The first opinion fails to explain why contribution is able to produce the housing ownership.The second opinion fails to demonstrate how the name-lender obtains housing ownership in a manner stipulated by law.It is shown that there are still many unsolved problems and even some wrong perceptions with respect purchasing house by borrowing other's name.Therefore,it is necessary to clarify the relevant issues theoretically and find a way to settle the disputes under the existing legal system.The second chapter is about the legal nature of purchasing house by borrowing other's name.Based on the behavior structure disassemble,the article classifies the behavior of purchasing house by borrowing other's name into two types in accordance with the identity of the party who signs the house purchase contract.Firstly,house purchase contract is signed by the name-borrower;secondly,house purchase contract is signed by the name-lender.If the name-borrower signs the contract on behalf of the name-lender,whether the name-borrower is an authorized agent shall be determined based on the actual situation.If the name-lender agrees expressly or impliedly the name-borrower to do so,it is authorized agency and the house purchase contact is entered between the third party and the name-lender.If the name-lender objected in advance,but did not deny when he knows that the name-borrower still acts as his agent,such no-deny shall not be deemed as authorization in accordance with the Article 66.1 of the General Provisions of Civil Law.The name-borrower is unauthorized since there are no other behaviors of the name-borrower which can be interpreted as an authorization.If the third party is in good faith,then the behavior of the name-borrower constitutes agency be estoppel,otherwise it constitutesunauthorized agency and whether the house purchase contract takes effect between the third party and the name-lender depends on the ratification of the name-lender.If the name-lender is ignorant of the name-borrower's act,it still may constitute agency by estoppel where the third party is in good faith.Where the name-borrower claims him to be the person with such name,if the name-borrower wants the name-lender to bear the legal effect of the house purchase contract,the rules of agency shall be applies analogically and the house purchase contact shall take effect between the name-borrower and the name-lender;if the name-borrower wants to bear the legal effect of the house purchase contract by himself,it constitutes the behavior of borrowing name.In order to determine the parties to the house purchase contract,it is necessary to confirm the true intention of the third party,the subsequent trading will of the name-lender,whether the third party is in good faith or not.Where the house purchase contract is signed by the name-lender,borrowing name is essentially a commission contract.The third chapter mainly analyzes the effectiveness of contract of borrowing name.The court shall examine whether there is any fact which may render a contract null and void in the specific case in accordance with the Article 52 of the Contact Law.With respect to the contract of borrowing name violating house policy,given the difference among the specific cases,such contract shall be null and void due to damaging public interests shall not be the uniform and absolute judicial rule when determining the effectiveness of such contract.The court shall review on a case by case basis and judge flexibly in specific case in accordance with the laws with the method of the principle of proportionality.The fourth chapter mainly looks into the housing ownership.From a dynamic view of real right change,where the house purchase contract is entered by and between the third party and the name-lender,the name-lender meets the requirements under the real right change pattern prescribed by Chinese laws since the name-lender has been registered as the owner of the house,which means the name-lender shall be deemed as the owner of the house.Where the house purchase contract is entered by and between the third party and the name-borrower,the contract can be interpretedinto a third party beneficiary contract targeting the name-lender and the name lender shall obtain a creditor's right thereunder.In addition,the name-lender and his ownership have been publicized in form of registration.Therefore,the name-lender shall be the owner of the house.From a static view of real right ownership,there is no mistake when the name-lender was registered in the real property register,which means correction registration and dissenting registration shall not be applied.Therefore,the name-lender shall be the owner of the house.