A Study On The Effect Of Parents Mortgage The Real Estate Of Underage Children

The phenomenon of underage children owning houses is increasing.It is not uncommon for parents to mortgage their underage children’s real estate for various reasons.However,in judicial practice,there are different understandings of the validity of such acts.A large number of judicial precedents with different judgments in the same case also reflect the mortgage of underage children by parents.It is necessary to discuss the effectiveness of housing behavior.This article introduces four typical cases made by different levels of courts,and summarizes the problems that exist in the cases when the courts apply relevant legal provisions to make judgments.First,the issue of the normative nature of the restrictive provisions for the guardian to dispose of the ward’s property;second,the specific judgment of “for the benefit of the ward”;third,the mortgage “not for the benefit of the ward” The nature and effectiveness of the behavior of underage children’s real estate.This article attempts to study the above three issues to provide solutions for the determination of the effectiveness of parents’ mortgage of underage children’s real estate,and to compare the behavioral model and effectiveness of parents’ mortgage of underage children’s real estate regulations in extraterritorial countries(regions),combined with Chinese national conditions.Make suggestions for improvement.This article is mainly divided into three parts: The first part is the brief introduction of the four cases and the summary of the focus issues of the case disputes.Four cases where judgments were made through different arguments were selected,and the above three controversial issues were obtained through the analysis of the case itself and the substantive reasons of different judgments.The second part is the legal analysis of the case disputes and the author’s point of view.Regarding the determination of the normative nature of the restrictive provisions on property disposal,the current academic circles different views and reasons for this issue are analyzed,combined with the essence of the behavior of parents’ mortgage of underage children’s real estate,it is recommended that the judges abandon the “effectiveness and compulsion” in the judgment.The dichotomy of“Regulations and Administrative Mandatory Provisions” analyzes the legal constitutional elements of behavior from legal norms and explores its essence;guardians dispose of the ward’s property.The restrictive provisions are exercised on guardians.With the limitation of statutory agency,the judgment of the effectiveness of the behavior should be based on whether the parents have the right to do this,instead of first determining the effectiveness of the mortgage behavior based on the heart,providing legal support for its conclusion,and then determining that the relevant legal norms are “effectiveness.” Or “management” mandatory provisions.Regarding the specific judgment of “for the benefit of the ward,” analyze the specific identification methods and identification difficulties of this type of problem in different cases,and analyze the different judgment standards,legal provisions and legislative purposes advocated by scholars.The judgment of “for the benefit of the ward” should be based on the most beneficial to minors as the core,with the principle of not serving the interests of minors as an exception,and strictly judging in light of the causes and consequences of the mortgage behavior.In terms of the nature and validity of the mortgage of the real estate of minor children “not for the benefit of the ward,” when parents mortgage the real estate of their minor children,their identity is the legal agent of the children,and the mortgage of the real estate of minor children should be the agent.Sanctions,if the behavior breaks through the restrictive provisions of the law and becomes “not for the benefit of the ward,” it should be an act of unauthorized agency that exceeds the legal restrictions on the legal agency.The counterparty of the mortgage cannot constitute an apparent agency due to the publicity of property rights and the principle of public trust.The effectiveness of mortgage behavior should be determined in accordance with the path of a narrowly unauthorised agency system,and it is not effective for minor children;the counterparty of the mortgage does not have the right to mortgage the real estate of minor children,but they can claim responsibility for negligence in contracting their parents.The third part is to draw out the differences in the legislation by comparing the relevant regulations of Germany,Japan,France and other countries and Taiwan area on the management of guardians or parents and the disposal of the property of the ward or minor children,and the current judicial situation make a suggestion.At the same time,the regulation of parents’ mortgage of underage children’s real estate should also specifically stipulate from the perspective of preventing the occurrence of behaviors.The exercise of the parent’s legal power of agency can be restricted by the establishment of a family kinship meeting system;or the establishment of a minor rights supervision agency,Supervise the performance of parental guardianship responsibilities,and provide the best protection for minors.