The Law Application Of Transferring Real Property With Fake Identity

In recent years,the cases of transferring real property with fake identity occur frequently.The basic case is that: the spouse,children,friends and tenants of house owner or even irrelevant persons make illegal profits through obtaining the owner’s house title to pretend to be the owner for house transfer whiles the house transferee believe it and pay for reasonable price.（The behavior of transferring real property with fake identity hereinafter referred to the “Behavior”）.He deceived the registration authority and finished the registration of transferring real property to obtaining illegal benefits.This causes problems with the obligee of the real right and the undertake responsibility.About this question,although the Supreme People’s Court in 2008 in the “Reply on How to Deal with Suspected Criminal Cases in the Case of Trial of Housing Registration Administrative Cases” on transferring real property with fake identity therewith whether it constitutes a good faith acquisition as the basis for the application of the law.However,there are several opinions in academic and practical circles.Representative opinions include: transferring real property with fake identity apply to the bona fide acquisition;or the contract of transferring real property with fake identity id deemed invalid on the basis of fraud;the transferring real property with fake identity apply to unauthorized agency;the transferring real property with fake identity apply to agency by estoppel.The reasons about laws apply of transferring real property with fake identity arguments is that it concern puzzling problems about transferring real property with fake identity,validity of contract,bona fide acquisition,unauthorized agency and agency by estoppel that argue for a long time in civil law.What’s more,it isn’t a typical case of traditional cases.On the contrary,it’s legal loopholes and must face choice problems of legal interpretation.This article shows controversies about exemplary cases of four court include the Intermediate People’s Court of Shenyang;the Intermediate People’s Court of Shanghai;the First Intermediate People’s Court of Shanghai and the Intermediate People’s Court Fengxian District of Shanghai.And the article will respond the opinions of scholar of transferring real property with fake identity apply to the systemof bona fide acquisition,avoidance of contract,negotiorum gestor and agency by estoppel.At last the article will demonstrate its reasonable of transferring real property with fake identity apply to unauthorized agency and agency by estoppel from their character,constitutive requirment,fundamental principle and so on.The opinions of transferring real property with fake identity are: apply to bona fide acquisition of real estate,apply to avoidance of contract basicing on fraud,application by analogy to unauthorized agency and agency by estoppel.The view of this paper is that transferring real property with fake identity is not suitable for bona fide acquisition.The contract of transferring real property with fake identity is valid.,can not be found invalid on the basis of fraud.Transferring real property with fake identity shound apply to the unauthorized agency or agency by estoppel.First of all,the correctness of the registration transferring real property with fake identity does not meet the applicable premise of registration error in good faith acquisition.At the same time,if the system of good faith acquisition is applied,the corrective function of opposition registration and change registration cannot be used to protect the legitimate rights and interests of the imposter.Second,the thisthe behavior is not the condition of contract invalidation.The thisthe dispose belong to generalized unauthorised disposition,and the contract of thisthe dispose shall be valid.At last,transferring real property with fake identity shound apply to the unauthorized agency or agency by estoppel.When the obligee is irresponsible and the counterparty has the appearance of a right that cannot be reasonably trusted,the narrow unauthorised agency system should be applied in order to protect the no-faulted obligee.In the case that the obligee is liable and the counterparty has a reasonable reliance on the appearance of the right,the applicable system should be referred to the apparent agency in order to protect the interests of the counterpart.When the obligee and the counterpart of the transaction are both attributable,they should be applied analogously according to the degree of fault of each party.In the application by analogy of unauthorized agency and apparent agency,the legal consequences are different.That is to say,if appling to unauthorized agency,its legal consequences depend on the right holder’s attitude of ratification.If obligeepursuing of recovery,the disposition has the effect of change of real right.The doer has no liability.Otherwise,he has liability and obligee has original rights.If the analogy is applicable to the agent,the legal consequences of the rightful agent will be generated.If analogy application agency by estoppel,the legal consequences will be authorized agency.Obligee has not liability.After being held responsible by the obligee,the claim may be recovered from the doer,and the scope of recovery shall be limited to the loss suffered by him.At the same time,the wrong registration liability of the real estate registration agency can also be one of the relief channels.