Study Of The Validity Of The Parents’mortgage Of Their Underaged Children’s House

The parents’ mortgage of their underaged children’s house is an act of agency of the legal agent.In Article 35 of the Civil Code,it is provided that“A guardian may not dispose of the ward’s property unless it is for protecting the interests of the ward”.This is considered as a restriction of the scope of agency of the legal agent.If it is not for protecting the interests of the underaged children,the mortgage is an unauthorized agency and has no effect of agency.In addition,owing to the specific characteristics of legal agency,there is no space for applying the agency by estoppels and the opposite should not claim for the establishment of the agency by estoppels.We should adopt comprehensive standards of determination and consider all conditions from the perspective of a rational person to decide whether the mortgage conforms to this requirement or not.If the mortgage is the agency by estoppels,the registration of mortgage based on the contract will be invalid to the underaged children because the interests of the underaged children should be protected in priority than that of the opposing party.The improvement of the system can learn from the system of custody supervisor in the civil law of Germany or Japan.Meanwhile,the rules of national supervision should be perfected so as to regulate the parents’ act of agency of disposal and to protect the interests of the underaged children’s property.