First, the validity of the "loan house" contract between the borrower and the borrower.

China adheres to the principle of freedom of contract, and should allow the parties to conclude any contract without violating the mandatory provisions of laws and administrative regulations and the public interest. For ordinary commercial housing, except in violation of the provisions of Article 52 of the Contract Law, if the actual purchaser can prove that both parties have agreed to purchase the house in its name and have actually invested, the contract for purchasing the house in its name is valid. But in most cases, the premise of buying a house under the name is to violate and evade the relevant national economic policies, and analyze several special houses in combination with the trial opinions of relevant courts in practice:

1. Purchase affordable housing and other policy-guaranteed housing in the name of violating national policies.

Borrow celebrities to violate the policy of affordable housing and buy affordable housing under the pretext. Affordable housing refers to "the government provides preferential policies, limits the size and sales price of units, builds them according to reasonable standards, and supplies them to urban low-income families with housing difficulties, which is of a security nature." According to Article 43 of the Measures for the Administration of Affordable Housing (J.J. [2007] No.258), it is not allowed to use this as an excuse to purchase affordable housing.

In judicial practice, the general view is that although this method only belongs to departmental regulations, it does not directly affect the effectiveness of the contract. However, affordable housing is an important measure taken by the government to solve the housing difficulties of urban low-income families, which has important practical significance for improving people's livelihood and promoting social harmony and stability. In order to truly benefit urban low-income families with housing difficulties, the conditions for their purchase and transfer are strictly restricted. However, in the name of purchasing affordable housing, it disturbs the state's supervision order on affordable housing, infringes on the right of urban low-income families with housing difficulties to buy and obtain housing on an equal footing, and at the same time causes the loss of state-related land and real estate taxes and fees, which goes against the original intention of affordable housing construction, thus constituting the damage to the public interest as stipulated in Item 4 of Article 52 of the Contract Law. In this regard, Article 16 of the Guiding Opinions of the Beijing Higher People's Court on Several Issues Concerning the Application of Laws in the Trial of Disputes over Housing Sales Contracts (Trial) (Jing Gao Fa Fa Fa [2065438+00] No.458) also clearly stipulates: "If a celebrity borrows money to purchase affordable housing and other policy-guaranteed housing in the name of others, and claims to confirm the ownership of the house in the name of a celebrity or according to the requirements agreed by both parties,

In the Beijing No.1 Intermediate People's Court's "Appeal Case of Wang Moumou and Hu Moumou Confirming the Invalidation of the Contract" (CaseNo.: (20 13) No.7624), the defendant Hu Moumou purchased a set of affordable housing in the name of the plaintiff Wang Moumou, and the original defendant signed an agreement with the following contents: "Wang Moumou voluntarily transferred the affordable housing to Hu Moumou, and Hu Moumou paid all the purchase price. After delivery, Hu Moumou carried out the house. Later, Wang claimed that the agreement was invalid because it violated relevant laws, regulations and policies. The court of second instance held that affordable housing refers to the policy housing provided by the government for urban low-income families with housing difficulties by limiting the area and sales price of Xing Tao with preferential policies and building according to reasonable standards. Buyers have limited property rights. Therefore, the sale of affordable housing should abide by laws and regulations, especially the time limit for listing and trading stipulated by relevant policies and regulations. Families who have purchased affordable housing and obtained deed tax payment vouchers or house ownership certificates for less than 5 years shall not be listed for sale at market prices. The agreement signed by Wang Moumou and Hu Moumou should be an invalid contract because it violates the mandatory requirement that the purchase of affordable housing cannot be directly listed and traded for less than five years. The second-instance judgment confirmed that the real-name house purchase agreement was invalid.

However, if both parties expressly agree to handle the registration of house ownership transfer after the expiration of the restricted listing transaction period, if the borrower is also qualified to purchase affordable housing at that time, the house purchase contract under the borrower's name can be deemed valid. Article 6 of the Guiding Opinions of Beijing Higher People's Court on Several Issues Concerning the Application of Laws in the Trial of Disputes over Housing Sales Contracts (J.G.F.A. [2010] No.458) also stipulates: "The original purchase contract of affordable housing transferred by the seller was signed on April1KLOC-0/2008, and the parties are transferring it.

Liu Jinli and Lu Shijun (caseNo.: 2006/2007) were involved in the second instance. : (20 14) No.01898). The court of first instance held that the house involved was purchased in the name of Liu Jinli, and the house was also registered in Liu Jinli's name, but the down payment was paid by Lu Shijun, the house loan was repaid by Lu Shijun, and the relevant bills were also in Lu Shijun, and the house was always occupied by Lu Shijun. Therefore, the above facts are enough to infer that there is a relationship between buying a house under the names of both parties. In addition, in July 2008, the payment agreement signed by both parties further confirmed the fact of buying a house under the name. Houses purchased by both parties in the name of affordable housing can only be listed and traded after the period of restricted listing and trading expires. According to the ascertained facts, Liu Jinli purchased the house from the developer on June 38, 2004+10. By the end of the first-instance debate, the housing purchase period has been five years, and the deed tax has been paid for five years. Therefore, the house has the conditions for listing and trading, and the house sales contract signed by both parties shall be valid.

In the second trial of "Zhang X and Wen X confirm the invalid contract dispute case" (case number: (20 14)- Zhong Min Zhongzi No.2727), the court of second instance held that according to the Supplementary Notice of Beijing Municipal Commission of Housing and Urban-Rural Development on Relevant Issues Concerning the Listing and Sales of Economically Affordable Housing, in April 2008 1 1. Zhang X's purchase of affordable housing and Zhang x 1' s purchase of housing under this contract. Five years after obtaining the ownership certificate of the disputed house, Zhang X transferred the disputed house to the name of Xin X, the daughter of Zhang X 1. This behavior does not violate the mandatory provisions of laws and administrative regulations. The Sales Contract for Existing Houses in Xihongmen, Daxing District, Beijing signed by Zhang X and Xin X is valid.

2. Buying a house under the pretext of violating the "restricted purchase" and "forbidden purchase" policies.

There are two opinions, positive and negative, about the contract effect of buying a house in the name of violating the "purchase restriction order" and "purchase restriction order". It is definitely believed that the purchase restriction policy is neither a law nor an administrative regulation, according to the "the Supreme People's Court on application"

Negative theory holds that indirect borrowing of names violates the policy and is invalid. For example, in April of 20 1 1, the first court of Zhejiang Higher People's Court issued "Several Opinions on Trial of Disputes over Housing Sales Contracts Affected by the Regulation and Control Policies of the Real Estate Market (Trial)". Article 8 stipulates: "If an actual buyer signs a contract with the seller in the name of others and handles the property ownership certificate, and requests to confirm that he is the actual buyer, In the case of "He Huiqiong v. Mai Ownership Confirmation Dispute" (case number: (20 13) Sui Min San No.893) tried by the Huadu District People's Court of Guangzhou, the plaintiff He Huiqiong bought a house in the name of the defendant Mai and registered it in the name of Mai because of a purchase restriction, and then the plaintiff sued for confirmation of the ownership of the house. The court held that it violated the purchase restriction policy and rejected the plaintiff's appeal.

However, the author believes that restricting and prohibiting the purchase of houses is a regulatory policy and is temporary. This policy restrains the sharply rising house prices by restricting the parties' freedom of contract to a certain extent, which only leads to temporary performance failure, not permanent performance failure. We should respect the principle of freedom of trade, and we should not arbitrarily invalidate the purchase contract in the name of evading the policy of restricting purchases and selling.

3. Buying a house under the pretext of evading the credit policy.

Whether evading the credit policy violates Article 52 of the Contract Law and "harms the public interest" depends on the identification of the public interest.

In the case of "Jin Jishan v. Dong Jinbao's House Sales Contract" (caseNo.: (20 10)No. 19950) tried by Beijing No.2 Intermediate People's Court, the plaintiff Jin Jishan bought a house from Zhang Li, an outsider in the name of the defendant Dong Jinbao. Because there were many houses in the plaintiff's name, the original defendant enjoyed a loan interest rate of 30% off the mortgage on 20438. After the plaintiff asked the defendant to assist in the transfer formalities, the defendant refused and told the court to ask the defendant to cooperate with the transfer. The defendant argued that the plaintiff's purchase of commercial housing and mortgage loan in its name was an act to cover up illegal purposes in a legal form, so the agreement signed by both parties was invalid and the house was owned by him. The court of first instance held that the actual purchaser of the disputed house was Jin Jishan, and the down payment and bank loan of the house were also paid by Jin Jishan. Therefore, Jin Jishan's request to confirm the ownership of the house and ask Dong Jinbao to handle the transfer of property rights should be supported. Even if the agreement signed by both parties is invalid, it cannot change the fact that the actual purchaser and investor of the disputed house is Jinjishan. The judgment supported the plaintiff's appeal, and the defendant refused to accept it and appealed in advance. The court of second instance held that the invalidity of a contract should be prohibited on the basis of validity. In this case, when suing for buying a house and handling a loan, it was not that Jin Jishan was not allowed to buy a house, but only that Jin Jishan's loan behavior was restricted. According to the departmental regulations of the People's Bank of China, the down payment ratio and interest rate level of commercial bank loans should be greatly increased with the increase of the number of loans. In other words, Jin Jishan and Dong Jinbao evaded the bank credit policy by buying houses and loans under the guise of evading the down payment ratio and interest rate level, which harmed the interests of banks rather than the public, so the contract was valid. The second instance dismissed the appeal and upheld the original judgment.

4. Buy self-built houses, fund-raising houses and group houses under the guise of buying units.

This kind of contract is the behavior that the actual investor borrows the name of others to buy a house in order to enjoy all kinds of benefits and economic benefits brought by the qualification of buying a house. Compared with pure commercial housing, self-built housing, fund-raising housing, group housing and so on. Our unit has many advantages in price and property management. The actual punishment behind this pretext of buying a house is the right that the unit enjoys based on its special status of buying a house in a group. In essence, it is a kind of unit welfare given to employees by the unit according to their length of service, professional titles and various conditions. This kind of punishment of their rights belongs to the category of private rights, and subjectively it does not intentionally harm the interests of the third party, nor does it violate laws and administrative regulations.

"Guo Zihou et al. and Gu Fuxin's ownership confirmation dispute" (caseNo.: (20 14) No.34 1). The court of first instance held that Gu Fuxin and Guo Zihou were employees of the same unit. When the unit sells a house, Gu Fuxin borrows Guo Zihou's name to buy a house, and the purchase price is actually paid by Gu Fuxin. The lease between the two parties is actually a buying and selling relationship under the name of loan, and the house should be owned by Gu Fuxin. Gu Fuxin and Guo Zihou signed an agreement. The real intention of both parties is to buy the house in the name of loan. After the delivery of the house, the house has been occupied by Gu Fuxin until now, and Gu Fuxin also gave Guo Zihou and Yu some compensation. In addition to the standard of liquidated damages, this agreement does not violate the mandatory provisions of relevant laws and administrative regulations, and it shall be deemed as valid. Therefore, Guo Zihou and Yu should cooperate with Gu Fuxin to handle the property transfer procedures of the houses involved in the case in time.

In the case of "Zhao Dehua, Geng Jiazhong v. Zhang Ying and Chen Yong Housing Sales Contract Appeal" (case number: (20 12) Zi Min Zhong Yi Zi No.406) tried by Zibo Intermediate People's Court, the plaintiff signed a transfer agreement with the defendant Chen Yong on June 25th, 2006, and the plaintiff purchased the defendant's house in the name of the defendant Chen Yong. After paying the transfer fee of 50,000 yuan to Chen Yong, the plaintiff obtained the right to purchase the house. The plaintiff paid the down payment, taxes and subsequent house payment, and Chen Yong issued the purchase invoice and receipt to him. The house is registered in the name of the defendant Zhang Ying (Zhang Ying is Chen Yong's wife). After the plaintiff asked the defendant to handle the house transfer procedures, the defendant refused, so he appealed to the court. The court of first instance held that the transfer agreement between the two parties was the true intention of both parties and the contract was valid. After the signing, both parties fulfilled most of the obligations of the contract in time and should continue to perform the unfinished part. The judgment supported the plaintiff's appeal. The defendant refused to accept the appeal, and Zibo Intermediate People's Court upheld the original judgment in the second instance.

5. Housing reform

For housing reform, it refers to the housing in which employees sell public housing to employees in the form of wage and currency distribution, and employees buy it at standard price or cost price, thus enjoying part or all of the property rights of the purchased house. Generally speaking, it is a kind of welfare and compensation provided by the state or unit to employees, not a policy housing guarantee. Under the condition that both parties voluntarily and do not violate Article 52 of the Contract Law and Article 5 of the Interim Measures of the Ministry of Construction for the Administration of Listed Sales of Purchased Public Housing and Economically Affordable Housing (Order No.69 1999), the house purchase contract under the name is valid.

Yu Changyou, Wang Mouyi, Wang Moujia and Li Shimiao (case number: (20 14) Zi Min Zhong Yi Zi No.6), plaintiff Wang Mouyi and Ding Changyou were husband and wife, defendants Li Shimiao and Wang Moujia were husband and wife, and Wang Moujia and Wang Mouyi were brother and sister. 1999, the plaintiff and his wife purchased the public house of Zibo zhoucun district Garden Administration Bureau where Li Shimiao worked, and then participated in the housing reform. The property involved is registered in the name of Li Shimiao. After the divorce, the plaintiff and his wife want to divide the property involved in the lawsuit and appeal to the court to confirm that the property belongs to the plaintiff. The court of first instance held that although there was no written agreement between the two parties, according to the witness testimony of the relatives of the original defendant, the fact that the defendant Wang Moujia admitted to the plaintiff in the recorded materials that he had invested in the house in the name, and the fact that the property involved had been used by the plaintiff for ten years and the house title certificate was also held by the plaintiff, it was determined that the original defendant had purchased the house in the name. Make sure that the property involved belongs to the plaintiff. The defendant refused to accept the appeal and the original judgment was upheld in the second instance.

Second,

The legal basis for the actual investor to obtain the ownership of the house in the name of buying a house.

Article 15 of the Property Law: "A contract concluded between the parties on the establishment, alteration, transfer and elimination of the real right of immovable property shall take effect upon the establishment of the contract, unless otherwise stipulated by law or the contract; Failure to register property rights does not affect the validity of the contract. " It can be seen that our country adopts the principle of creditor's rights formalism to the change of real right, that is, the combination of voluntariness and registration (or delivery), which abandons the invalidity of real right behavior in German real right law. Refers to the basic behavior or relationship that supports the change of real right is not established or revoked, and the change of real right is invalid or revoked accordingly.

According to Article 9 of China's Property Law, the establishment, alteration, transfer and extinction of the real right of immovable property shall take effect after being registered according to law; Without registration, it will not take effect, except as otherwise provided by law. "Article 15:" A contract concluded between the parties on the establishment, alteration, transfer and elimination of the real right of immovable property shall come into effect upon the establishment of the contract, unless otherwise stipulated by law or the contract; Failure to register property rights does not affect the validity of the contract. "Article 17" real estate ownership certificate is the proof that the obligee enjoys the real estate right. "Article 19:" If the obligee or interested party thinks that the items recorded in the real estate register are wrong, it may apply for correction of registration. If the obligee recorded in the real estate register agrees to make corrections in writing or there is evidence to prove that the registration is indeed wrong, the registration institution shall make corrections. "

Therefore, the registration of real estate property right is the proof of the ownership relationship and expression form of real estate at that time by the registration authority, and it has presumption effect on the ownership of real estate right. The effectiveness of publicity and public trust is mainly to protect the interests of bona fide third parties other than the real estate registrant and the real owner, but the title certificate itself cannot directly determine the legal relationship of the entity, that is, the actual rights. If the real right of immovable property does not involve a bona fide third party, the parties may request to confirm their rights when they have evidence to the contrary to prove that they are the real right holders. That is, in the absence of evidence to the contrary, it should be presumed that the matters recorded in the real estate ownership certificate are true. Externally, the real estate transaction behavior of bona fide third parties based on their trust in registration and the registered obligee is protected by law, but between the nominal purchaser and the actual purchaser, we should explore the true meaning expression of both parties to confirm the real obligee.

The case of Zhang and Sun's house ownership confirmation dispute (caseNo.: (20 12) final word No.9875) heard by our court holds that Sun Jia signed a house sales contract with Li on May 19, 2003, and handled the house ownership certificate in Sun Jia's name. However, according to Sun's property right certificate, purchase invoice, deed tax invoice, relevant procedures of the first set of listed house sales contract for purchased public housing, capital contribution procedures (all the above materials are in Sun's place), witness testimony of the original owner of House No.603, and the fact that Sun's family has been living in House No.603 since 2003, it can be concluded that there is a relationship between Sun and Sun A to purchase houses in their names, and it is confirmed that the disputed house is owned by Sun.

The case of "Zhao Yu, Li Xinglu and Contract Dispute" tried by Hongqiao District People's Court in Tianjin (case number: (20 13) Hongminchuzi No.4479). The two plaintiffs, Zhao Yu and Li Xinglu, bought the disputed house on 20 1 1 in the name of the defendant Li Ying, and the down payment and repayment were both borne by the two plaintiffs. The defendant now wants to sell the house and asks the court to confirm that the house belongs to the two plaintiffs. The court held that the certificate of ownership of immovable property is the proof that the obligee enjoys the real right of immovable property. However, if there is a dispute over the ownership and content of the real right, the interested party may request confirmation of the right. At this time, the owner of the property right can not be identified simply by the owner of the property right registered on the property right certificate, but by the evidence provided by the parties and the facts ascertained by the court. In this case, it can be confirmed that the down payment of the disputed house is actually funded by two plaintiffs, and the monthly housing loan is also repaid by two plaintiffs, and there is an expression of intention between the two plaintiffs and the defendant to buy the house in their name, so it can be concluded that the two plaintiffs are the property owners of the disputed house, and the disputed house is decided to be owned by the plaintiffs Zhao Yu and Li Xinglu.