借名买房合同的效力问题研究

发布时间：2018-05-02 00:44

本文选题：借名合同 + 借名买房　；参考：《西南大学》2017年硕士论文

【摘要】：房屋是公民日常生活中最基本的生活资料,房地产业也成为了影响经济和社会发展的一个重要因素。随着我国民事法律的逐渐完善,其在房屋买卖法律行为上也制定了许多具体的法律制度和规定。从整个买房行为来看,其会涉及很多民事法律关系以及法律事实。从房屋买卖合同签订到合同的履行,以及房屋登记等,都会因为社会实践的多样性而显示出一些法律漏洞。借名买房合同是在特殊的社会背景下产生的法律问题,对其产生原因和解决对策的探讨首先要在相关的法律制度内出发,并考虑到国家的一些经济政策,以此探寻立法者对此所秉持的立法精神。借名合同是无名合同,其与信托、委托合同、虚假意思表示等概念既有相似之处又略有不同,在分析借名买房合同涉及到的问题时,一方面要考察上述类似行为的具体法律适用情况,另一方面也要体现借名买房合同中相关问题解决方式的独特之处。借名买房合同往往走在法律的边缘,对其效力问题以及性质的认定都存在很大的争议。不同的主体往往对此有不同的判断,因此也导致很多法院对此问题出现了不同的裁判。但依据合同法意思自治的原则,只要当事人意思表示自由、准确以及完整,都应认定是有效的,除非有恶意串通损害他人合法权益、违反法律、行政法规的强制性规定等合同无效的情形,否则都应直接认定该借名买房合同有效。而对于各地出台的限购令以及对于经济适用房等的规定,其对合同效力的影响则应当理性看待。依据《中华人民共和国合同法》的相关规定,国家出台的相关政策以及部门规章、地方性法规是不宜作为合同效力认定的标准的,因此,对借名买房合同效力的认定一般应从现有法律、行政法规的内容出发,再考虑该借名买房合同是否因违背国家相关政策规定而损害国家利益和社会公共利益,亦或是恶意串通损害他人利益等合同无效的情形。除了对借名人和出名人内部的借名协议效力作认定外,借名买房这一行为还涉及到对外部法律行为即房屋买卖合同和出名人处分所涉房屋等行为效力的界定。关于房屋买卖合同效力的认定,一般从合同法中意思自治的角度出发,若符合合同成立的形式要件,一般认定为有效,若其具有恶意串通损害他人利益、违反公序良俗以及意思表示不真实等无效或者可撤销的情形,则应具体分析每种情形下该房屋买房合同的效力状态。关于出名人处分房屋的效力问题,一般从善意取得的角度出发,考察第三人的主观状态以此来作出效力认定,若符合善意取得的成立条件,则出名人的处分行为即使为无权处分,第三人也可能取得该房屋的所有权。借名买房合同除了对其效力作出认定,实践中更为重要的是对房产的归属作出确认,而这又与《中华人民共和国物权法》里面的物权登记制度相关联。我国物权法规定了不动产的登记制度,并明确了不动产登记的公示公信力和推定效力,此即表明不动产登记薄上记载的权利人在法律上享有推定权利,但在借名买房合同中,实际购买人为借名人,登记名义人并未实际出资,在事实上享有的房屋产权的应是借名人。此即涉及到物权中事实物权和法律物权的关系。从借名买房合同中来看,借名人一般为事实物权人,出名人为法律物权人。因此,在判定借名买房合同中房屋物权归属问题时,应如何在借名人和出名人之间进行权利衡量,以及如何保护事实权利人的相关权益,均是借名买房合同中应重点解决的问题。一般来说,出名人在房屋登记在其名下后,应根据其与借名人的内部约定,协助借名人办理房屋过户登记,将房产转至借名人名下,借名人亦可依照此内部约定主张上述权利。但若房屋因政策等限制缺乏流通性,房屋因此不能再作变更登记,此时出名人因返还由借名人支付的购房款以及履行其他相关义务。另外,若有善意第三人,还应充分考虑到善意第三人的利益,在没有善意第三人的情形下,可直接在借名人与出名人之间进行利益分配。除以上之外,还涉及到权利的保护和救济问题,如出名人处分了该房产,并为善意第三人办理了过户登记,借名人实际已不可能获得该房屋。此种情况下借名人如何获得救济,能不能请求相关赔偿,都是借名买房合同中会涉及到的问题。
[Abstract]:Housing is the basic life material in the daily life of citizens, and the real estate industry has also become an important factor affecting the economic and social development. With the gradual improvement of the civil law in China, many specific legal systems and regulations have been formulated in the legal behavior of the house buying and selling. From the view of the whole house buying behavior, it will involve many people. Legal relations and legal facts. From the signing of the housing contract to the performance of the contract and the housing registration, some legal loopholes will be displayed because of the diversity of social practice. Starting from the legal system and taking into account some of the state's economic policies, the legislative spirit of the legislator is explored. The name contract is an anonymous contract. The concept of the contract is similar to the trust, the entrustment contract and the false expression. In the analysis of the problems involved in the loan to buy a house, one aspect should be examined. The specific legal application of the afore-mentioned similar behavior, on the other hand, should also reflect the unique way of solving the related problems in the loan to buy a house. The loan of a name to buy a house is often on the edge of the law, and there is a lot of controversy on the problem of its effectiveness and the identification of its nature. Many courts have made different judges on this issue, but according to the principle of autonomy of the contract law, as long as the party's meaning is free, accurate and complete, it should be valid, unless there is a malicious collusion between the legal rights and interests of others, the violation of the law, the mandatory provisions of the administrative regulations and so on. According to the relevant regulations of the People's Republic of China contract law and the relevant regulations issued by the state and the regulations of the Ministry, the local regulations are not suitable as the contract efficiency. As a result of the standard of force identification, the determination of the validity of a loan to buy a house should generally proceed from the existing laws and the contents of the administrative regulations, and then consider whether the contract for the loan of the name is damaged by the relevant policies of the state and damages the interests of the state and the social and public interests, or is a malicious collusion to damage the interests of others. In addition to the confirmation of the validity of the loan name agreement within the celebrities and the celebrities, the behavior of borrowing a house to buy a house involves the definition of the effect of the external legal behavior, such as the housing sale contract and the house involved in the dispose of the celebrity. The identification of the validity of the contract for the sale of the house is generally from the perspective of the autonomy of the contract law, if it is in conformity with the contract law. The form elements of a contract are generally recognized as effective. If they have malicious collusion to damage the interests of others, violation of public order, good customs and untrue meaning, it is necessary to analyze the effectiveness of the housing contract in each case. From the point of view of meaning acquisition, the subjective state of the third people is examined in order to determine the effectiveness of the house. If it is in accordance with the conditions for the acquisition of good faith, the third party may obtain the ownership of the house even if it has no right to dispose of it. The ownership of the production is confirmed, and this is associated with the system of registration of real right in the property law of the People's Republic of China. The property law of our country stipulates the registration system of real property and clear public credibility and presumption of the registration of real property, which means that the right holders recorded in the real estate registration book enjoy the presumption of law. But in the loan to buy a house contract, the actual buyer borrows the celebrity, the registered name does not actually make capital contribution, in fact the property right of the house should borrow the celebrity. That is, it involves the relationship between real right in real right and the legal right of law. Therefore, when judging the ownership of the property right in the loan to buy a house, how to measure the rights between the celebrities and the celebrities, and how to protect the rights and interests of the factual rights holders are the key problems to be solved in the contract of buying a house. Generally speaking, after the house registration is under its name, it should be based on it and by the celebrities. Within the internal agreement, help the celebrities to register the house, transfer the property to the name of the borrower, and the celebrities can also claim the right in accordance with the internal agreement. But if the house is not limited in circulation because of the policy restrictions, the house can not make a change registration. At this time, the famous person will return the purchase money paid by the celebrities and perform the others. In addition, if there are third people in good faith, the interests of the third people in good faith should be taken into full consideration. In the absence of good faith third persons, the interests can be allocated directly between the celebrities and the famous people. In addition to the above, the protection and relief of the rights are also involved, such as the dispose of the property and the third people in good faith. It is impossible to obtain the house by the name of the celebrity. In this case, how to obtain the remedies by the celebrities can not ask for the related compensation, which are all the problems that will be involved in the loan to buy a house.

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

【参考文献】