Analysis Of Legal Question About The “purchase a house by undisclosed principal”

徐鹏

Abstract：For the purpose of avoid risk or make a profit，now the phenomenon of”purchase a house by undisclosed principal” is ubiquitous.The owner of the house is the investor or registrant？ How to settle the dispute between the principals if there is conflict on the ownership of house？this text will discuss the resolution around this issue.

Keywords：real right in law ；real right in fact；risk

A contract signed by both parties which based on freedom and equality with non-aggression on the interest of nation、collectivity and individual should be firmly recognized as valid and legitimate.Now we discuss the binding Of contract that purchase a house by undisclosed principal from three respects：first，we should think about if this contract break the law；second，we should think about if this contract will destroy the profit of the third party；third，we should talk about if the the contract on basis of declaration of will.

The experience from practice， we can know the "purchase a house by undisclosed principal" phenomenon is the emergence and disputes are increasing， the main reason is because national policies related to buyers eligibility limit， make a person with ability to buy houses produced the idea of legal loopholes. For this kind of situation we are not universally recognized for its agreement is valid or invalid.

First， For the purpose of in fraud of law and policy

Non-native people residing in Beijing for a long time can not purchase a house because do not conform to the tax condition such as five years ； Or some urban residents both for whatever reason to purchase a house in the countryside. The former， there is no damage to the interests of the state， collective or other person shall be deemed to be valid in my view. Urban residents who purchase a rural house by undisclosed principal， shall be considered nullity due to a violation of the regulations about rural land transfer administration law.

（一）Transferred property by purchase a house by undisclosed principal

According to the contract law "provisions of the contract is invalid situations including malicious collusion harm the interests of the state， the collective or a third party， and in the form of legal cover for illegal purposes. Although the undisclosed principal the house which registered on someone else will hurt the interests of other creditors， but how the creditors proof and prove the existence of the celebrities and celebrity borrow directly malicious collusion， if there is a malicious collusion situation we shall be identified as the contract is invalid， creditors claim cancellation right to safeguard their own interests.

1.In order to buy the economy applicable room

" management regulation of the affordable house " as the main basis of adjusting affordable house at present.The regulation have not regulate the actions of purchase a house by undisclosed principal； At the same time because of the "regulation" does not belong to enforceable rules， purchase a house by undisclosed principal shall not be deemed as the affordable house is in violation of the provisions of laws，regulations， Whether or not harm the interests of state， the collective and the third party. Government built affordable house is in order to solve the housing difficulties of low-income families， if person who conform to the conditions of the celebrities have made the house， volunteered to housing for the actual investor to possess or use. According to "contract than legal" spirit， we should not be decided that the act whose interests have been infringed， so this is should be regarded as effective behavior.

Second，The effectiveness of the right in rem

The contract of purchase a house by undisclosed principal refers to the actual housing investors to buying homes under others name.the actual investor still be entitled to the right of house”s management， utilize， profit. and under certain conditions the actual investor may request to recover housing real rights. Some scholars also think that the actual investor not only have the right to management， use， yield， he should have a completed right in rem which should also include right of disposal on this house. The right of disposition including buying and selling，mortgage and other rights， but we know that in the case of tpurchase a house by undisclosed principal， although the investor actual possession of the house， but house real owner in law were the actual registration， in the case of transfer， mortgage， must registerded by management department， and if a celebrity is not to the actual investor will never actually all the houses on disciplinary action. So I personally think to borrow to buy houses in the name of another person actually investors have limited property rights， rather than the full rights

Above-mentioned are in case of signed by both parties effectively under the condition of the real right nature， how to recognized the effectiveness of the agreement if it violate the mandatory provisions of the law. As we discussed earlier， to avoid debt transfer property and buy homes and registration in the case of someone else. In practice， in order to avoid the court execution， some defendant transferred property to others， even though we know this defendant transferred property as a means of escape from debt， but we still have to recognize a celebrity with a legitimate property rights， so the houses， and not as the property of the person subjected to execution to seize or auction.

Third，The rights conflict

purchase a house by undisclosed principal is a complex process， which not only includes the rights and obligations under the agreement the parties relationship， but also including the third parties of civil action .

1.Borrow the difference between the buying behavior and the agent behavior

Civil agent act refers to the agent within the scope of the agency authority， in the name of the principal civil activities independently of the third person， and the resulting all legal consequences shall be borne by the agent .Because according to borrow to buy a house behavior can know by celebrities in order to realize the nature of their own interests， the agent of famous building trades with the other party， in the end the registration formalities in the name of the celebrity， but at this time to produce the legal consequences should be considered by the borrow celebrity or agent， because he is the right of the premises and to pay house money， repay bank loans and other obligations. So to borrow to buy a house of behavior should not be regarded as a kind of agent behavior.

2.A conflict with donative behavior

Borrow to buy a house of a celebrity and the actual investor to relatives， friends and even more in a relationship， sometimes on both sides of the cause of the show will not sign a written agreement， if the celebrity back to their investors think the houses for practical gift rather than borrow to buy， even if such conditions by celebrities and proved proof for the actual investor cannot explain the behavior is the gift or borrow.

3.The fact that the real right and the law of real right

According to professor wang liming is discussed in the studies of property law， in the event that the obligee of the goodwill protection refers to the registration the unsubscribe as a real right holder on the law， even if later proved recorded in the register of the real right does not exist or exist flaws， to rely on the existence of the real right which has been engaged in the property rights trading， law still admit that their behavior has the same legal effect with the real property rights. After the registration of the applicant for the registration， any person because of the trust registration， and the obligee is engaged in the trading of property registration， meet the requirements of the constitution of the good faith， shall be protected by the good faith system， the real estate ownership. That is to say， if the house was out celebrities in accordance with law， transfer to a third person， borrow celebrity is entitled to request the third person return to buy the house.

Forth，the conclusion

"Borrow to buy a house" phenomenon is the emergence and growing， its cause is some more buyers in order to circumvent the laws， regulations and policies of unfavorable factors， since you chose to circumvent the law， is now wanting to use the law to ensure their implementation of the graveyard， is must pay a price， otherwise， how to embody the majesty of the law.