父母以未成年子女名下房产抵押效力之探讨
发布时间：2019-05-10 16:35
【摘要】：近年来,随着我国经济的发展,未成年人可以通过继承、赠予以及劳动等多种方式和渠道获得房产,与以往相比登记在其名下的房产数量明显出现大幅增长,父母以未成年子女名下房产抵押的行为也越来越普遍。由于未成年人基本属于无民事行为能力人或限制民事行为能力人,无法对自己名下房产进行有效的管理,因此法律建立了未成年人监护制度。在该制度框架下,监护人可以对未成年人的财产进行管理。一般情况下,父母当然成为未成年子女的监护人。由于未成年子女名下房产实际处于父母的控制之下,这为父母以其提供抵押担保创造了非常便利的条件。虽然《中华人民共和国民法通则》明确规定了非为被监护人利益,监护人不得处分未成年人财产,但是这一规定是原则性的规定,欠缺可操作性,法官在适用时解释不一,导致裁判思路各异,裁判结果也存在不同,这严重损害了司法的权威性和公平性,故有必要结合法理,正确理解和适用现有法律规范,以使此类纠纷得到公正合理的解决。本文分为引言、正文和结语三个部分。引言部分主要介绍背景并引出问题。正文部分由以下三个部分组成:第一部分对司法实践中的相关案例进行梳理,归纳出各种类型的裁判思路,总结案件的争议点。第二部分就第一部分归纳出的争议点进行分析,从理论上探讨抵押行为的效力问题。首先分析影响抵押行为效力的因素,其中涉及未成年子女名下房产的所有权归属问题、父母与未成年子女的财产处分关系及财产处分权的正当行使、抵押行为的性质认定;其次分析了抵押行为的物权效力和债权效力。最后对于效力问题进行了小结,以期能够妥善解决此类案件中存在的争议点,为后续提出司法裁判建议提供足够的理论依据。第三部分则在第二部分的法理分析基础上,就如何在现有法律规范不完善的情况下合理公正地解决此类案件提出自己的建议。本文最后一部分对文章观点进行了总结。
[Abstract]:In recent years, with the development of economy in our country, minors can obtain real estate through inheritance, gift, labor and other ways and channels, and the number of real estate registered in their name has obviously increased greatly compared with the past. It is also becoming more and more common for parents to mortgage their property in the name of their minor children. Because minors basically belong to those who have no civil capacity or restrict their civil capacity, they can not effectively manage their own real estate, so the law has established the guardianship system of minors. Under the framework of this system, guardians can manage the property of minors. In general, parents, of course, become guardians of minor children. Since the property of minor children is actually under the control of their parents, this creates very convenient conditions for parents to provide mortgage guarantees. Although the General principles of the Civil Law of the people's Republic of China clearly stipulate that guardians may not dispose of the property of minors if they are not in the interests of guardians, this provision is a provision of principle and lacks maneuverability, and judges have different interpretations when applicable. It is necessary to correctly understand and apply the existing legal norms in order to solve this kind of disputes fairly and reasonably, which seriously damages the authority and fairness of the judiciary, so that the existing legal norms can be correctly understood and applied in combination with the legal principle. This paper is divided into three parts: introduction, text and conclusion. The introduction mainly introduces the background and leads to the questions. The main body is composed of the following three parts: the first part combs the relevant cases in judicial practice, sums up various types of judicial ideas, and summarizes the controversial points of the case. The second part analyzes the controversial points summarized in the first part and discusses the effectiveness of mortgage behavior in theory. First of all, it analyzes the factors that affect the effectiveness of mortgage behavior, including the ownership of property owned by minor children, the property disposition relationship between parents and minor children, the proper exercise of property disposition power, and the identification of the nature of mortgage behavior. Secondly, the author analyzes the effect of real right and creditor's right of mortgage. Finally, the effectiveness of the problem is summarized in order to properly solve the controversial points in this kind of cases, and to provide sufficient theoretical basis for the follow-up recommendations of judicial decision. The third part, on the basis of the legal analysis of the second part, puts forward its own suggestions on how to solve this kind of cases reasonably and fairly under the condition that the existing legal norms are not perfect. The last part of this paper summarizes the point of view of the article.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2
本文编号：2473823
[Abstract]:In recent years, with the development of economy in our country, minors can obtain real estate through inheritance, gift, labor and other ways and channels, and the number of real estate registered in their name has obviously increased greatly compared with the past. It is also becoming more and more common for parents to mortgage their property in the name of their minor children. Because minors basically belong to those who have no civil capacity or restrict their civil capacity, they can not effectively manage their own real estate, so the law has established the guardianship system of minors. Under the framework of this system, guardians can manage the property of minors. In general, parents, of course, become guardians of minor children. Since the property of minor children is actually under the control of their parents, this creates very convenient conditions for parents to provide mortgage guarantees. Although the General principles of the Civil Law of the people's Republic of China clearly stipulate that guardians may not dispose of the property of minors if they are not in the interests of guardians, this provision is a provision of principle and lacks maneuverability, and judges have different interpretations when applicable. It is necessary to correctly understand and apply the existing legal norms in order to solve this kind of disputes fairly and reasonably, which seriously damages the authority and fairness of the judiciary, so that the existing legal norms can be correctly understood and applied in combination with the legal principle. This paper is divided into three parts: introduction, text and conclusion. The introduction mainly introduces the background and leads to the questions. The main body is composed of the following three parts: the first part combs the relevant cases in judicial practice, sums up various types of judicial ideas, and summarizes the controversial points of the case. The second part analyzes the controversial points summarized in the first part and discusses the effectiveness of mortgage behavior in theory. First of all, it analyzes the factors that affect the effectiveness of mortgage behavior, including the ownership of property owned by minor children, the property disposition relationship between parents and minor children, the proper exercise of property disposition power, and the identification of the nature of mortgage behavior. Secondly, the author analyzes the effect of real right and creditor's right of mortgage. Finally, the effectiveness of the problem is summarized in order to properly solve the controversial points in this kind of cases, and to provide sufficient theoretical basis for the follow-up recommendations of judicial decision. The third part, on the basis of the legal analysis of the second part, puts forward its own suggestions on how to solve this kind of cases reasonably and fairly under the condition that the existing legal norms are not perfect. The last part of this paper summarizes the point of view of the article.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2
【参考文献】
相关期刊论文 前1条
1 林晶;;论儿童最大利益原则适用的误区[J];甘肃社会科学;2011年03期
，本文编号：2473823
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