| Guided by the Supreme People’s Court’s different judgment positions on borrowing house cases,through the empirical analysis of 200 borrowing house cases,it is found that there are disputes in three main issues: the effectiveness of borrowing house,the ownership of borrowing house,and whether the borrower can exclude the third party from enforcing the application due to the lack of unified normative documents,complicated reasons for borrowing house and various types of houses.As for the validity of the act of borrowing names,the main controversy lies in whether the act of borrowing names leads to the contract invalidation because it violates public order and good customs when buying affordable housing and commercial housing restricted by real estate control policies.In this regard,we should analyze the actual impact of the borrowing behavior on the transaction security protection and social order,and specifically judge whether it is necessary to determine that the borrowing agreement is invalid in order to protect the public interest.When buying affordable housing by name,the effect of the act of borrowing name is interpreted as effective,while safeguarding the civil subject’s freedom to dispose of their own rights and interests,it will not necessarily cause damage to the public interest.When buying houses involving real estate regulation and control policies by name,if the purpose of buying houses by celebrities is not speculative real estate speculation,it should also be recognized that the borrowing behavior is effective.There are two opposing views on the ownership of borrowed houses: "creditor’s rights" and "property rights".It is considered that the borrower is not the "real right holder" in the action of real estate confirmation,and the ownership of the borrowed house should be owned by the celebrity before the transfer registration is completed.There are three viewpoints: affirmative,negative and eclectic on whether the third party can be excluded from enforcing the application by borrowing celebrities.In principle,it should be denied that the borrower can exclude the compulsory execution.Only when protecting the basic living rights and interests of the borrower,the interests of all parties in the case can be examined one by one according to the principles of purpose,balance and necessity.If the conditions are met,the borrower can exclude the execution. |
