借名购房纠纷案件的法律适用研究

发布时间：2018-06-24 19:30

本文选题：借名购房 + 审判立场　；参考：《浙江大学》2013年硕士论文

【摘要】：住房乃民生之本,关系国家、经济社会的稳定协调发展,因此由住房问题引发的纠纷也不容忽视。“借名购房”并非当下才出现的新名词,然而随着房价的不断攀升,房控政策频出,“借名购房”现象愈演愈烈,其潜在风险引发的确权纠纷、房屋买卖合同纠纷、返还原物纠纷、损害赔偿纠纷等不断诉至法院,成为了社会关注的焦点。司法实务中,借名购房纠纷案件暴露出了不少审判难点,主要表现为法官认定事实困难,各地法院对此类纠纷案件的审判标准和思路不统一,而立法者又未能形成清晰的指导意见,导致法官在如何正确适用法律上存在困惑,以至于审判结果各不相同,影响了司法权威。针对这个问题,笔者从合同法与物权法角度分析,于本文的第一部分对当前典型的借名购房纠纷案件中法官的司法审判立场进行了梳理,以揭示当前审判实务中存在的突出问题。第二部分重点对借名购房的法律行为与法律关系进行学理分析。从借名购房行为的特点阐释,到指出区分借名购房中债权与物权关系的重要意义,并逐一对借名购房案件中涉及到的债权法律关系和物权法律关系进行详细分析,得出借名购房合同应参照合同法中的委托合同执行,且审判中不宜将此类案件认定为所有权确权纠纷。本文第三部分提出了笔者对于借名购房纠纷案件的处理方案构想,强调统一司法审判标准之必要。法官应在厘清债权与物权法律关系的基础上,正确适用法律,在遵循维护国家住房限购政策的同时,实现当事人之间的利益平衡,实现法律效果与社会效果的良好统一。
[Abstract]:Housing is the foundation of people's livelihood and the stable and harmonious development of economy and society, so the disputes caused by housing problem can not be ignored. "buying by name" is not a new term that has just appeared. However, with the constant rise of house prices and the frequent emergence of housing control policies, the phenomenon of "buying houses by name" is becoming more and more serious. The potential risks of this phenomenon have led to disputes over the right to purchase houses and disputes over the contract of purchase and sale of houses. The dispute of return of original property and the dispute of compensation for damages have become the focus of social attention. In the judicial practice, the disputes over the purchase of houses under the name of the name have exposed many difficulties in trial, which are mainly manifested in the difficulty of finding the facts by the judges, and the lack of unity of standards and ideas in the trial of such disputes in various local courts. However, the legislators fail to form clear guidance, which leads to the confusion of how to apply the law correctly, so that the judicial results are different and the judicial authority is affected. In the first part of this paper, the author combs the judge's judicial stand in the typical dispute cases of borrowing and buying a house from the angle of contract law and real right law. In order to reveal the current trial practice in the outstanding problems. The second part focuses on the legal behavior and legal relationship of the loan-name purchase. From the explanation of the characteristics of the behavior of borrowing name to pointing out the significance of distinguishing the relationship between creditor's rights and real right, and analyzing in detail the legal relation of creditor's rights and real right involved in the case of borrowing name purchase one by one. The contract of loan-name purchase should be carried out according to the entrustment contract in the contract law, and it is not suitable to regard this kind of case as a dispute of the right of ownership in the trial. The third part of this paper puts forward the author's plan to deal with the dispute case of borrowing name purchase house, and emphasizes the necessity of unifying the judicial judgment standard. On the basis of clarifying the legal relationship between creditor's rights and real right, the judge should apply the law correctly and realize the balance of interests between the parties and the good unification of the legal effect and the social effect while following the policy of maintaining the national housing purchase restriction.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.29;D923.2;D923.6

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