【作者】 张海燕；

【导师】 袁绍义；

【作者基本信息】 河南大学 ， 民商法学， 2019， 硕士

【摘要】 借名购房是借名人出于特定原因隐藏自己的名义,从而与出名人达成协议,约定借用出名人名义购买房屋并登记在其名下,由借名人实际履行出资,并由借名人实际占有、收益、处分,待条件具备时出名人须协助借名人办理房屋过户登记手续的行为。借名购房的房屋类型主要有经济适用房、单位自建房、集资房、“限购”类调控房、拆迁安置房,涉及物权归属与债权问题,法律关系复杂,司法实践中出现“同案不同判”现象。鉴于单位自建房、集资房涉及单位利益,冒名购房本质上不属于借名行为,本研究将其排除在研究范围之外。借名购房纠纷主要问题有债权合同的效力认定混乱、物权的归属确认结果不统一、直接将政策作为裁判依据。产生这些问题的主要原因在于物权关系与债权关系相混淆、对物权公示主义的认识存在偏差、对合同效力认定依据理解存在偏差。基于此,在解决借名购房纠纷时,应树立物权归属与债权关系区分的理念,坚持《物权法》公示公信原则的权威性,解决借名购房的物权归属问题。将物权优先推定为出名人享有,简化法律关系,发挥司法判决的引领作用,以此警告借名人。在此基础上讨论债权关系,以平衡双方的利益,实现民法的公平正义。基于此,本文共分为五个部分:第一部分是对借名购房的概念及类型进行分析。通过对借名购房的内涵与特征进行分析,将其区分于冒名购房。由于我国没有相关的规定,对其分析有助于准确界定借名购房行为,并限定了本文的讨论范围仅限于借名购房。另外分析了借名购房现象产生的原因及所涉房屋类型,房屋类型不同,借名购房协议的效力也会受影响,为后文分析奠定基础。第二部分对我国借名购房纠纷法律适用的现状及所反映的问题分析。对借名购房纠纷司法实践的现状进行分析,通过案例查找提取借名购房纠纷的争议焦点,主要有借名购房的事实是否存在、借名购房合同的效力及涉案房屋的物权归属等方面,以明确司法实践的现状。在此基础上对司法实践中存在的问题进行挖掘,为后文分析提供依据,以期解决实践中的“同案不同判”现象。第三部分是对借名购房纠纷法律适用问题产生的原因分析。借名购房纠纷法律适用问题产生的原因主要有物权关系与债权关系相混淆、对物权公示主义的认识存在偏差、对合同效力认定依据理解存在偏差等原因,为借名购房纠纷解决提供裁判思路:应当将债权与物权进行区分,应首先解决借名所购房屋的物权归属问题,基于利益平衡的需要,再解决借名人与出名人之间的债权问题。第四部分是借名购房纠纷的物权归属与合同效力之证成。在物权归属上,“物权说”主张借名人取得物权,“债权说”主张出名人取得物权。针对法律并无规定的情形,借鉴隐名投资关于股东资格确认的规定,采取外观主义,并在合同效力判定之前确认。而且我国采取的是形式主义立法模式,不动产登记薄具有权利推定效力,借名人可在不动产登记薄变更登记后取得物权,对法律物权优先保护。在对借名购房合同效力分析时,关于借名购房债权合同的性质主要有无名合同、代理、消极信托多种观点,本文认为其是委托合同。对于借名购房合同的效力,学界存在争议,本文认为不适用《民法总则》第146条第2款隐藏行为的规定。借名购房合同不符合隐藏行为的构成要件分析,作为委托合同,只是民事法律行为。基于隐名投资协议的效力判定对借名购房合同的启示,应依据《合同法》判定合同效力。第五部分是借名购房纠纷法律适用问题的解决路径。对于借名购房纠纷的物权归属问题,推定房屋属于出名人所有,借名人利益在债权中予以平衡。在借名购房合同的效力认定上,应基于《合同法》第52条对予以认定,若不存在法律规定的无效事由,即可肯定借名协议的效力。关于借名购房纠纷法律适用问题具体路径,应坚持物权推定归属于出名人之后,再对合同效力进行判定的裁判思路。合同有效时,出名人应当协助借名人办理房屋过户登记,出名人陷入履行不能时,应当承担违约责任。合同无效时,基于不当得利返还出资,并根据房屋实际状况,增加或者减少返还数额。更多还原

【Abstract】 Borrow a purchase is famous for a specific reason to hide your own name,so as to reach a deal with a celebrity,agreed to borrow in the name of the celebrity to buy houses and registered in the name,by borrowing capital actually perform celebrity and by celebrity actual possession,income,disposition,the celebrities should help borrow celebrity stay conditions have been met the housing transfer registration formalities.The types of houses purchased by name mainly include economically applicable houses,self-built houses by units,collective houses,regulated houses of "purchase restriction" type,and houses of demolition and resettlement,which involve the ownership of real right and creditor’s right.The legal relationship is complicated,and the phenomenon of "different judgments of the same case" appears in judicial practice.In view of the interests of units involved in self-building and collective housing,the purchase of houses under false names is not in essence a borrowing behavior,which is excluded from the scope of this study.The main problems of the loan purchase dispute include the confusion of the validity of the creditor’s rights contract,the inconsistency of the result of the ownership of real right,and the direct use of policy as the basis of judgment.The main reasons for these problems lie in the confusion between the real right relationship and the creditor’s right relationship,the deviation in the understanding of the public doctrine of real right,and the deviation in the understanding of the basis of the validity of contract.Based on this,we should establish the concept of distinction between ownership of real right and creditor’s right,adhere to the authority of the principle of publicity and public trust in the property law,and solve the problem of ownership of real right that is discussed in priority.It will simplify the legal relationship and play the leading role of judicial judgment under the premise of presuming the priority of real right as belonging to celebrities,so as to warn celebrities.In order to balance the interests of both parties and realize the fairness and justice of civil law,the creditor’s rights are discussed on this basis.Based on this,this paper is divided into five parts:The first part is the analysis of the concept and type of the loan purchase.Through the analysis of the connotation and characteristics of house buying under borrowed name,it is distinguished from house buying under false name.Because there are no relevant regulations in our country,the analysis of it is helpful to define the behavior of house purchase by borrowing,and the discussion scope of this paper is limited to house purchase by borrowing.In addition,this paper analyzes the causes of the phenomenon of house purchase by borrowing and the types of houses involved.Different types of houses may affect the effectiveness of house purchase agreement by borrowing,laying a foundation for the following analysis.The second part analyzes the current situation and problems of the application of the law in the dispute of buying houses under borrowed names.This paper analyzes the current situation of the judicial practice of the loan house purchase dispute,and finds out the focus of the dispute through cases,mainly including the existence of the loan house purchase fact,the effect of the loan house purchase contract and the ownership of the real right of the houses involved,so as to clarify the current situation of the judicial practice.On this basis,the existing problems in judicial practice are excavated to provide a basis for later analysis,in order to solve the phenomenon of "different judgments of the same case" in practice.The third part is the analysis of the causes of the application of laws in the disputes of house purchase under borrowed names.Borrow a purchase dispute applicable law reasons mainly include the real right and creditor’s rights relations confused,there exist deviations in understanding of the real right of the public,decided to contract effectiveness according to the reasons such as,there exist deviations in understanding dispute resolution provides the referee thought that buy a house for borrow name: should differentiate between creditor’s rights and property rights,should first solve the problem of the ownership of the purchased housing and based on the need of balancing of interests,to solve the problem of creditor’s rights between borrow celebrity with a celebrity.The fourth part is the ownership of property rights and the validity of the contract.In the ownership of real right,"real right theory" advocates borrowing celebrities to obtain real right,"creditor’s right theory" advocates celebrities to obtain real right.In the case that there is no provision in the law,it USES the provisions on the confirmation of shareholders’ qualification of anonymous investment for reference,adopts externalism and confirms before the validity of the contract.Moreover,China adopts a formalistic legislative model,and the real estate register has the effect of presumption of rights.Celebrities can obtain the real right after changing the registration of the real estate register,giving priority to the protection of legal real right.In the analysis of the effectiveness of the loan purchase contract,the nature of the loan purchase credit contract mainly has anonymous contract,agent,negative trust,this paper believes that it is a trust contract.As for the validity of the house purchase contract under the pseudonym,there is a dispute in the academic circle.This paper argues that the provisions of article 146(2)of the general provisions of the civil law on hidden behaviors are not applicable.The purchase contract in name does not conform to the analysis of the components of hidden behavior,but as an entrustment contract,it is only a civil legal act.According to the law of contract,the validity of the contract should be determined.The fifth part is the way to solve the problem of the application of law in the dispute of buying house by name.As for the ownership of real right in the dispute of purchasing house by name,the house is presumed to be owned by a famous person,and the interests of a famous person are balanced in the creditor’s right.In order to confirm the validity of the loan agreement,it should be based on article 52 of the contract law.If there is no invalid reason stipulated by law,the validity of the loan agreement can be affirmed.As for the specific path of the application of law in the dispute of house purchase by name,we should insist on the judgment idea of the validity of the contract after the property right is presumed to belong to a famous person.When the contract is valid,the celebrity shall assist the celebrity in handling the house transfer registration,and the celebrity shall be liable for breach of contract if he/she is unable to perform the contract.If the contract is invalid,the capital contribution shall be returned on the basis of unjust enrichment,and the amount returned shall be increased or decreased according to the actual situation of the house.更多还原