Judicial examination case "Interpretation by Case": the dispute over the ownership of rights under the pretext of buying a house

Case

Zhao and Wu Mou are husband and wife, Zhao is their eldest son, Zhao is their daughter and Ye is Zhao's wife. On September 3, 21, the plaintiff Zhao Mouling signed the commercial housing subscription book with Xincheng Company, and transferred 1, yuan to pay the deposit through Zhao Moumou and Ye Mou's bank card. The name of the payer of the relevant invoice is Zhao Mouling. On October 3, 21, the pre-sale deposit of 182,122 yuan was paid by Yemou bank card transfer, and the name of the invoice payer was Zhao. On October 3rd, 21, Zhao signed the Commodity House Sales Contract as the buyer. The house involved borrowed 63, yuan from the bank, and then the mortgage repayment was repaid through Zhao's bank card. In April 215, the property right certificate was applied for the house involved, and the registered rights were Zhao and Wu Mou.

In 29, Zhu cooperated with Zhao and Zhang, an outsider in the case, and in May 21, Zhu and Zhao had a dispute. At the end of 212, Zhu sued Zhao, and the court ordered Zhao to repay Zhu's partnership transfer of 28, yuan and interest. In 215, Zhu filed an application for execution, and on September 3 of the same year, the court ruled to seal up the house involved. After Zhao Mouling raised an objection, the court ruled that Zhao Mouling's objection request was rejected.

Zhao Mouling filed a lawsuit of execution objection, requesting to stop the enforcement measures such as the seizure and auction of the house involved and to confirm that the ownership of the house belongs to Zhao Mouling, the plaintiff.

Disagreement

The behavior of buying a house by name is because the actual investor does not meet certain qualifications, or it is not convenient to buy a house in his own name, and he agreed to borrow his name to buy a house, and registered the house in the name of a famous person, but still retained the right to use the house. The change form of the ownership of the borrowed house does not meet the formal requirements of the property law for the ownership of the house, resulting in the inconsistent form of the property owner at the legal level and the property owner at the actual level, thus causing many disputes. At present, the problem is that the law does not provide clear judgment rules for practical reference in dealing with such disputes, which causes great confusion for judges to apply the law and leads to the possibility of judging with different standards. There are two main opinions on whether the real right status of house ownership is inconsistent with the registration status, and whether the borrower should actually be the real owner of the house, so that the borrower should be confirmed as the owner of the house accordingly.

the first opinion is that if it can be proved that a house-buying relationship has been formed between the two parties based on the evidence provided by the parties, such as the payment of the house purchase price, the repayment of the mortgage, and the agreement between the two parties on the ownership of the house under the name, the real meaning between the parties is that the house is bought by a celebrity and the house is owned. Although the borrowed celebrity is registered as the owner of the house according to the corresponding house sales contract and other documents, this is not the true meaning of the parties. The ownership registration based on this does not have the basis of cause and action, which leads to the inconsistency between the state of registered rights and the state of real rights. This situation should return to the state of real rights, so the parties' request for confirmation of real rights should be supported. This view is called "the theory of real right".

The second opinion is that in the process of buying a house by borrowing a name, the house sales contract between the registered obligee and the third party is true and effective, and the registration of house ownership has been completed based on this basic legal relationship, so the registered obligee is the only legal owner of the house, and the agreement on the ownership of the house between the borrower and the registered obligee can only bind both parties to the contract, and has no legal effect of directly establishing the ownership of the house. Borrowing celebrities can't directly obtain the ownership of the house according to the agreement on buying a house by borrowing names. This view is called "creditor's rights theory".

Analysis

The author agrees with the second opinion for the following reasons:

First of all, the handling of such disputes should essentially depend on the distinction between the relationship between property rights and creditor's rights and the understanding of real estate registration in this legal act. In the relationship of buying a house under the name, there are actually two consensuses: one is the agreement between the borrower and the borrower on the ownership of the house; The other is the agreement on the registration of house ownership reached between the borrower and the third party, and expressed to the registration authority accordingly. These two consensuses are consistent in general, but they are separated in specific circumstances. As far as this case is concerned, the house involved is registered under the name of a third person, Zhao, as the subject of execution, and Zhao Mouling objected that the house belongs to him. Assuming that Zhao Mouling is also the obligor, the corresponding obligee will not be able to execute the real estate involved in the case registered under the name of the third person in this case, which will form a right vacuum and seriously affect the normal trading order.

Secondly, because China's property law takes registration as an important element in the transaction of real estate, the ownership of the house can't take effect in real right only on the basis of the agreement of the parties. Therefore, the ownership of the house has not been transferred to the borrower, but a specific creditor-debtor relationship has emerged between the borrower and the borrower, and the agreement has only the effect of creditor's rights. Therefore, the borrowed celebrity has the corresponding obligation to assist the borrower in handling the registration of house ownership transfer, and the borrower thus becomes the creditor under this relationship.

Thirdly, the first paragraph of Article 9 of China's Property Law stipulates: "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. " This regulation expounds the rules for handling real estate disputes from the perspective of external relations, that is, in the external relations with other transaction subjects, the registration of real estate property rights has credibility, and its function is to protect the security of transactions, that is, the security of reasonable trust interests of transaction subjects, that is, the transaction behavior of traders under the condition of normal appearance according to general judgment standards, and their expected interests should be protected by law. Specific to this case, even if the fact that Zhao Mouling bought a house under the name exists, the borrower only enjoys the creditor's rights to the registered obligee and does not have the ownership of the house involved, so his claim in this case cannot be supported by the court.

(Author: tongshan district People's Court, Xuzhou City, Jiangsu Province)