借名买房法律问题研究

发布时间：2018-03-16 09:09

本文选题：借名买房　切入点：借名协议　出处：《山东大学》2017年硕士论文　论文类型：学位论文

【摘要】：房屋不仅是人们最基本的生活资料,在市场经济日益发达的今天,房屋作为私有财产也是保值、增值的重要手段。近年来,由于房地产市场的过度投资,我国房地产行业持续升温,加上投机炒房的影响,使得我国房价过快上涨;为了保证房地产市场的健康发展,保障人民最基本的住房需求,维护社会的和谐稳定,国务院和地方政府出台了一系列限制购房资格、购房数量和贷款条件的通知和细则,统称"限购令";同时,国家为了调整住房供应结构、妥善解决中低收入群体的住房问题,国家出台了经济适用房、限价商品房等政策性住房;还有一些单位向员工出售具有内部福利性质的单位集资房,不过只有符合条件的内部员工才能购买。因此,由于受某种条件限制而不具备购房资格或者不能享受优惠条件但有购房需求的人,使用他人名义购买房屋,于是便产生了借名买房现象。一般来说,房屋的实际购买者使用他人名义购买房屋,并且将房屋的物权登记在他人的名下,导致了房屋的实际权利人与登记权利人不一致的情况进而引发各种类型的纠纷,这就是本文所讨论的借名买房问题。使用他人名义购买房屋的人称为借名人,出借自己的名义供他人使用的人称为出名人。通常情况下,房屋的登记权利人和实际权利人为一人,但是在特殊情况下,由于不动产登记机构工作人员的疏忽或者因履行无效合同等原因,会使得不动产登记簿出现权属错误,即会将房屋的所有权登记在非实际权利人的名下。本文所讨论的借名买房行为所导致的房屋实际权利人与登记权利人不一致的情况,是由于双方当事人的约定所造成的。在司法实践当中,当事人借名买房的原因多种多样,有的是为了借名购买经济适用房等政策性保障住房,有的是为了享受银行贷款优惠条件,有的则是为了规避"限购令"等政策的影响,这就更是加剧了借名买房纠纷的复杂性。同时,由于我国法律对借名买房行为并没有做出明确的规定,出于不同的价值判断,法院也存在着不同的理解,因此各地法院对此类纠纷在审判标准和思路上并不统一,以至于审判结果各不相同,甚至出现"同案不同判"的结果,严重影响了司法权威。针对这个问题,本文以案例为切入点,通过个案对司法实践当中借名买房行为所涉及的相关法律问题进行分析总结,结合现有立法规定及法学理论对借名买房行为的概念和性质进行界定,并对借名买房协议的效力进行探讨,以期能在现有立法框架下探求解决借名买房相关纠纷的最佳途径。引言部分主要对选题背景、学者观点以及研究思路进行了介绍。正文主要分为四个部分:第一部分,个案分析。根据房屋的性质以及借名的原因,本部分挑选了五个具有代表性的案例:案例一为借名购买单位集资房;案例二和案例三中的借名买房行为同样违反了"限购令",但法院却做出了不同的判决;案例四和案例五中都是借名购买政策性保障住房,但却出现了一个以损害社会公共利益为由确认借名买房行为无效和一个确认借名买房有效的情况。五个案例互有区别但有联系,本文对个案进行了单独和对比分析,并对借名买房行为的原因、房屋性质、法院的司法审判立场以及双方当事人的争议焦点进行了梳理,以展现当前借名买房行为的司法现状,为下文借名买房问题的展开做好铺垫。第二部分,借名买房行为的概念及性质。首先对借名买房行为以及借名买房协议的概念进行界定,然后将借名买房协议与相近的概念,包括信托行为、行纪行为、代理行为以及委托行为进行对比,对借名买房协议的性质进行明确。通过分析得出,借名买房协议属于无名合同,与委合同最为相似,根据《合同法》第一百四十二条的规定,可以参照委托合同的规定执行。第三部分,借名买房协议的效力分析。合同效力在当事人意思表示自由、完整、准确的情况下应当被认定为有效,除非具备合同无效的情形,如果在合同法和相关的司法解释规则当中,无法找出认定借名合同无效的依据,就应当认定借名合同是有效的。司法判例中判断借名买房协议效力的法律依据通常为《合同法》第五十二条第(二)项至第(五)项的规定,因此本部分的行文逻辑就是根据这四项规定对借名买房协议的效力逐一进行分析,并且结合借名买房的原因进行具体分析。第四部分,借名买房行为的房屋所有权归属的确定。本文将房屋所有权归属的争议限定在借名人和出名人之间以及借名人和第三人之间,综合前文三个部分对借名买房问题所涉及法律问题的分析,结合基于法律行为的物权变动理论、区分原则理论和不动产登记的推定效力对房屋所有权的归属进行分析。本文认为,在借名买房协议无效的情况下,借名人原则上不能取得房屋的所有权;在借名协议有效的情况下,借名人在充分证明自己是实际购房人的前提下,原则上可以获得房屋的所有权;在涉及善意第三人的时候,出于维护交易安全与交易秩序的目的,法院就应当侧重保护善意第三人的利益。
[Abstract]:The house is not only the basic livelihood of people, in today's increasingly developed market economy, housing as private property is an important means of hedging, value-added. In recent years, due to excessive investment in the real estate market, China's real estate industry continues to heat up, plus real estate speculation effect, makes China's housing prices rose too fast; in order to ensure the healthy development of the real estate market, safeguard the people's basic housing needs, maintain social harmony and stability, the State Council and the local government introduced a series of restrictions on the purchase of qualified buyers, and the loan conditions through knowledge and rules, referred to as "restriction"; at the same time, the state in order to adjust the housing supply structure to solve the housing problems of low-income groups, the state introduced affordable housing, affordable housing and other housing policy; there are some units to employees to sell with internal welfare units from the housing, not Only qualified employees to purchase. Therefore, due to restrictions on certain conditions and buyers do not have the qualifications or not enjoy preferential conditions but there is demand for the purchase, use the name of others to buy houses, so they had to buy a house by the name phenomenon. Generally speaking, the actual buyers of houses used by others in the name of the purchase of housing, and the housing property registration in the name of others, led to the actual housing rights and the right to register people inconsistencies and lead to various types of disputes, which is discussed in this paper by the name of housing problem. The use of the name of another person to buy a house to borrow celebrity person lend their name for other people to use celebrity. Usually, the housing registration rights and actual rights for a person, but in special circumstances, the real estate registration agency staff negligence Or for the performance of the invalid contract and other reasons, the real estate register error will appear ownership, housing ownership registration in the non real right under the name of the person. The buying house behavior as a result of the housing real rights and the right to register people is not the same situation, because of the parties agreed caused. In judicial practice, the reason to buy a house by the name of a variety of some to borrow to buy affordable housing and other affordable housing policy, some bank loans in order to enjoy preferential conditions, some is to avoid the influence of "restriction" policy, which is more intensified the complexity of buying house disputes. At the same time, as China's law on buying house behavior does not make explicit provisions for different value judgment, the court also has a different understanding, so the court on such The dispute is not unified in the trial standards and ideas, so that the trial results are not the same, even "somesentence" results, which seriously affected the judicial authority. Aiming at this problem, this paper takes the case as the starting point, the related legal problems through the case to the judicial practice of buying house behavior involved is analyzed and summarized. Combined with the existing legislation and legal theory of the concept and nature of buying house behavior are defined, and the validity of buying house agreement is discussed, in order to solve the existing legislative framework by the name of housing related disputes is the best way. The introduction part mainly introduces the background, the views of scholars and research ideas are introduced. Text is divided into four parts: the first part is the analysis of the case, according to the nature of the building. And the reason by the name, this part chose five representative cases: the case A case for raising housing units purchased by the name; case two and the case of three buying house behavior also violated the "restriction", but the court has made a different decision; cases four and fifth are purchased by the name of protection of housing policy, but there is a harm to the public confirm the interest grounds of buying house act is invalid and a confirmation by the name of buy effective. Five cases are different but related, this paper analyzed and compared the individual case, and to buy a house by the name of behavior reason, the nature of housing, the court's judicial position and both parties were the focus of controversy comb, in order to show the justice of buying house behavior in the current situation, by the name of housing issues for the following parts. The second part is to pave the way, by the concept and nature of the name buy behavior. Firstly, by the name of buy and buy behavior by the name of the housing agreement The definition, and then buy a house by the name of agreement with the similar concepts, including trust, brokerage, contrast agent behavior and the nature of the act of commission, by the name of buy agreement clearly. Through the analysis, by the name of buy agreement belongs to nameless contract with the commission contract, the most similar, according to the provisions of the contract law. > 142nd, can be executed according the contract. The third part analyses the validity of buying house agreement. The validity of the contract said that freedom, complete in parties, accurate circumstances should be recognized as valid, unless a contract invalid, if the contract law and the relevant judicial interpretation of the rules, not find out that by the name of the contract is the basis, it should be identified by the name of the contract is valid. Judicial precedent judgment legal basis by the name of buy agreement is usually "contract law" Article fifty-second (two) to (five) of the Convention, so this part of the paper is based on the logic of these four provisions on the validity of buying house agreement were analyzed one by one, and with reason to buy a house by the name of a specific analysis. The fourth part, by the name of buy behavior to determine the attribution of housing ownership the ownership of the building. The dispute is limited in by celebrities and celebrity and by celebrities and between the third, three parts based on the above analysis on the legal issues involved in buying house problems, combined with the real right change based on legal theory, the principle of distinguishing theory and real estate registration presumption of effectiveness of house the ownership is analyzed. This paper argues that, in the name of housing Agreement invalid, borrow celebrity principle cannot obtain the ownership of the house; in case of agreement by name, by the celebrities in full If we prove that we are the real buyers, we can get the ownership of the houses in principle. When the third party concerned is concerned, for the purpose of maintaining transaction safety and transaction order, the court should focus on protecting the interests of the third party in good faith.

【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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