| Housing has become a kind of investment tool.In order to curb the real estate prices rising too quickly and protect the healthy development of the real estate market,governments have issued a variety of policies.In this case,the phenomenon that borrowing name to buy a house arises,which directly results in the inconformity between the house buyers and housing rights registrants.Therefore,the number of civil cases triggered from the phenomenon has not reduced.However,the judicial authorities have not formed unified judging rules for such cases.This paper will conduct a comprehensive analysis of the behavior structure,contract nature,effectiveness and ownership problem from empirical research and theoretical analysis prospective.The first chapter analyses the composition,causes and the current situation of judicial judgment of borrowing names to buy houses.The behavior mainly includes: borrowers and lenders agree on borrowing names to buy houses;borrowers actually pay for the houses;borrowers actually use the houses.Thereasons for borrowing names to buy houses mainly include: 1.Avoiding the policy of “limited purchase”.2.Trying to get the qualifications of buying affordable house or welfare house.3.Hiding or transferring property.4.Simplifying transaction procedures and saving transaction costs,etc.At present,there are several problem in dealing with the case: 1.Deficiencies in the quotation,explanation and analysis of the “housing limited purchase policy”.2.Lack of the definition of the legal nature.3.Focus only on the justice and reasonableness of the results,but not on the in-depth legal analysis.The second chapter mainly discusses the legal nature of borrowing names to buy houses.Combining various theories and existing judicial practice,the author believes that the act of borrowing names to buy houses should be a kind of contract,which is different from the agency contract,brokerage contract and trust contract stipulated in the Contract Law of China.The author divides the contract into the loan name contract signed by the borrower and the lender and the purchase contract signed by the actor.The loan name contract does not belong to named contract so the author thinks it belongs to the unnamed contract,while the purchase contract obviously belongs to the sales contract stipulated in the contract law.The third chapter mainly analyses the contract validity of borrowing names to buy houses.In the case of evading policy to borrow names to buy houses,the direct borrowing: when the third person is unaware,the purchase contract is established and effective between the lender and the third person;when thethird person is aware,the purchase contract is invalid.Indirect borrowing: the third person is uninformed,the purchase contract is established and effective between the third person and the lender;when the third person is informed,it is relatively complex,and needs to be analyzed according to the wishes of the third person.According to the provisions of Article 402 and 403 of the Contract Law,it is considered that the purchase contract is established and effective between the third person and the lender at this time.In the second case,direct borrowing:when the third person is unaware,the purchase contract is established between the lender and the third person;when the third person is aware,the purchase contract is established between the third person and the borrower.Indirect borrowing,when the third person is uninformed,the purchase contract is established between the lender and the third person.When the third person is informed,both possibilities may occur according to the third person’s wishes.When purchasing a common house under a borrowed name,the purchase contract should be valid at this time because it does not involve the problem of avoiding the purchase restriction policy and the qualification of purchasing a house.The fourth chapter mainly analyses the ownership of the house purchased under the borrowed name.The legitimate rights and interests of borrowers,lenders and third personshould be considered.When third personis not involved,the interests of borrowers should be protected firstly.At this time,the real right in fact is better than the real right in law.Whenthird personis involved,we shouldfurther analyze whether the third person is in good faith or not.When the third party is in good faith,the interests of the third person should take precedence overthe real right in fact.Whenthe third party is not in good faith,the real right in fact should take precedence over the third party.At this time,the interests of borrowers are more worthy of protection than the interests of the third person.. |
