| In order to stabilize house prices and realize residents’ housing,the State Council and some local governments have implemented a number of macro-control measures to limit the main body and quantity of house purchases,and increase the loan interest rate,which has achieved the goal of stabilizing house prices to a certain extent,but also produced "side effects",As a result,citizens who do not meet the purchase qualification or do not enjoy the purchase preference choose to borrow the name of others to achieve their purchase purpose.Buying a house by name will lead to a series of legal problems,such as whether the contract is valid,whether the house ownership belongs to the borrower or the celebrity,and how to protect the interests of the third party.In recent years,the academic circles have conducted many discussions on the above legal issues,and have not formed a consensus so far.There is also a lack of clear judgment guidance in judicial practice.The validity of the house purchase agreement and the ownership of the house are the focus issues in the house purchase by name,which are related to the stability of social and economic order and the major interests of the parties,and need to be paid close attention to.In addition to the introduction,this paper includes the following three parts:The first part mainly introduces the concept and characteristics of buying a house by name,the nature of legal relations in buying a house by name,the classification of buying a house by name and so on.The agreement on house purchase by name covers two types of contracts,namely,the contract for house purchase and sale by name.The contract for house purchase by name is not one of the 19 contracts listed in the contract series of the current civil code of the People’s Republic of China,but an anonymous contract;There is no necessary connection between the effectiveness of housing sales contract and borrowing contract,which should be recognized separately.According to the purpose of borrowing a house,it can be divided into: borrowing a house to avoid the affordable housing policy,borrowing a house to avoid the purchase and loan restriction policy,and borrowing a house for other purposes.The second part carries out a typological analysis of the effectiveness of the loan house purchase agreement.The validity of a house purchase agreement includes the validity of a house purchase contract and a house purchase and sale contract.The determination of the effectiveness of the contract should be based on the general provisions of the civil code and the general provisions of the contract.The affordable housing management policy and purchase restriction policy are formulated to stabilize the real estate market and ensure the basic housing needs of residents.They represent the social and public interests.The name borrowing contract that circumvents the above policies is invalid because it violates public order and good customs.Purchasing ordinary houses by name and evading bank credit policies in order to obtain loan qualification do not involve social and public interests and do not violate public order and good customs.The name borrowing contract shall be deemed to be valid.When there is no legal invalidity in the house sales contract,it shall be deemed to be valid.The third part mainly analyzes the difficult problems in determining the ownership of the house and the reasons why the house ownership should belong to the celebrity.To determine the ownership of house ownership,we should make value judgment on the premise of legal logic.If the "name" and "reality" of a real estate are inconsistent due to a legal act,the ownership of the real right should be determined according to the nature of the legal act,not directly according to Article 2 of the interpretation of the Supreme People’s Court on the application of the real right part of the civil code of the People’s Republic of China(I).The reasonable approach is to make the house belong to the celebrity according to the path preset by the parties,and the borrower can claim to register the house transfer to his own name according to the contract.This not only does not violate the inner intention of the parties,but also takes into account the principle of fairness and reduces the negative externality of the law. |
