摘要
司法实践中,借名购房的法律效力认定出现截然对立的裁判结果,学界对其也仍有争议、尚未形成共识。借名购房法律效力认定包含借名购房合同效力认定和借名购房物权归属认定,物权区分原则是作为物权变动原因的合同效力与物权变动的法律效果相区分。合同效力方面,借名购房合同在现行法有名合同体系中无法准确定位,应当认定为无名合同,在不违背法律效力性强制规定和公序良俗时应肯定其效力。物权归属方面,在物权法定主义和不动产物权登记生效规则下,借名人作出借名购房这一名实不符状态的权利安排,是最能控制风险的因素,宜认定出名人为物权所有人,借名人的真实权利可通过向出名人主张移转登记予以保障。借名购房合同效力认定和物权归属是处理借名购房外部法律关系的基础,当出名人擅自转让房产时,其性质应为有权转让,当出名人之债权人申请强制执行时,借名人不足以排除强制执行,可以通过债权途径予以救济。这一路径安排遵循了现行法规范体系并逻辑自洽,法价值上,达成了当事人私法自治的目标;法秩序上,消除了登记物权与真实权利名实不符的状态,确保物之归属秩序,也为处理涉第三人的外部关系提供基础,稳定交易秩序。
In judicial practice,the legal effect of buying a house by name appears to be diametrically opposed judgment result,which is still controversial and a consensus has not yet been formed.The legal effect of buying a house by name includes the effect of a contract for buying a house by name and the ownership of a real right to buy a house by name.The principle of distinction is to distinguish the contract effect as the cause of changes in real rights from the legal effect of real rights.In terms of contract validity,a house-buying contract by name cannot be accurately positioned in the current legally-named contract system.It should be regarded as an unnamed contract,and its validity should be affirmed when it does not violate the mandatory provisions of legal validity and public order.With regard to the ownership of real rights,under the rules of real estate legalism and the registration of real estate rights,the right arrangement to buy a house by name is inconsistent with the status of the property,which is the most controllable risk factor,and it should be recognized that the registered nominee owned the real right.The true rights of can be guaranteed by claiming transfer registration.The validity of the contract of buying a house by name and the ownership of property rights are the basis for handling the external legal relationship.When the registered nominee transfers a house without authorization,its should be valid.When the creditor of the registered nominee applies for compulsory execution,the borrower is insufficient to exclude compulsory execution,he should be relief.This path arrangement follows the current legal norm system and is logically self-consistent.In terms of legal value,the goal of the parties’is achieved:in the legal order,the state of inconsistency between the registered property rights and the real rights is eliminated,and the order of belonging of the objects is ensured.It also provides a basis for handling external relations involving third parties and stabilizes the trading order.
出处
《民间法》
2021年第4期360-372,共13页
关键词
借名购房
区分原则
合同效力
物权归属
Buying a house by name
Principle of distinction
Contract effectiveness
Ownership of Property
