借名买房合同中的物权归属与借名人保护  

Ownership of Property Rights in the Contract of Buying a House under a Name and Protection of the Borrower

作　　者：汤晨旸 

机构地区：[1]华东政法大学法律学院,上海

出　　处：《争议解决》2023年第4期1685-1690,共6页Dispute Settlement

摘　　要：实践中对于借名买房合同裁判结果不一,这对于解决此类纠纷起负面作用。借名买房行为属于合同联立,解决借名买房问题的核心在于借名买房合同。因规避限购政策而订立的借名买房合同,不属于背俗行为抑或违反强制性规定,合同以有效为原则。在借名人和出名人之间,若出名人参与房屋买卖,则其为所有权人,借名人仅依借名合同享有债权;若出名人仅出具名义,则宜将借名人解释为所有权人。出名人处分房产为无权处分,但第三人因善意取得而成为所有权人。借名人对无权处分仅得依请求履行借款合同义务、请求实现债务不履行责任等手段寻求救济。In practice, the adjudication results of contracts for the purchase of houses under the name are inconsistent, which has a negative effect on resolving such disputes. The act of buying a house under a name belongs to the joint contract, and the core of solving the problem of buying a house under a name lies in the contract of buying a house under a name. Due to circumvention of purchase restriction policy, the contract of buying a house under a false name is not a violation of custom or a violation of mandatory provisions, and the contract is valid. Between the borrower and the celebrity, if the celebrity participates in the sale and sale of the house, he is the owner, and the borrower only has a claim according to the borrowing contract;If the celebrity is only in name, it is advisable to interpret the borrowing celebrity as the owner. The celebrity disposes of the property without the right to dispose of it, but a third party becomes the owner because of the bona fide acquisition. If the borrower has no right to dispose of it, he may only seek relief by means such as the request to perform the obligations of the loan contract, the request to realize the debt, and the non-performance of the obligation.

关 键 词：借名买房行为 借名买房合同 所有权归属 善意取得 

分 类 号：D92[政治法律—法学]