借名買房之法律適用

Legal Application of Buying a House by the Name of Another Person

借名買房是指當事人一方（借名人）經他方（出名人）同意，以他方名義買房並登記，且房屋歸屬於借名人一方的行為。當事人常訂有借名買房協議，綜合合同法上的有名合同類型以及學理上關於典型合同與非典型合同的理論，該協議應屬混合合同。對該合同的法律適用，應採“結合說”，依個別給付所屬合同類型的法律規定加以判斷。借名登記中，出名人為房屋的登記名義人，而借名人為房屋的實際權利人，從而導致該房屋上法律物權與事實物權發生分離，在確定房屋歸屬時，應區分是否涉及第三人利益，以劃定法律物權與事實物權的保護範圍，並以此規範房屋物權變動。

According to the agreement between one of the parties, who buys a house by the name of another person, nd the other party, who provides his name for the buyer, the buyer should pay the price of the house and other costs, and sometimes the buyer should pay for the other party; accordingly the other party should provide his name for the buyer to buy and register the house. According to the contractual law and the theory of the atypical contract, we define the agreement between the parties a kind of hybrid contract. To identify the validity of the agreement to buy a house by the name of another person, we should analyze the content of the contracts of buying a house and registering the house by the name of another person. Because of registering the house by the name of another person, the legal real right, which is held by the another person, and the factual real right, which is held by the buyer, on the house are detached. Therefore, only by delimiting the protection limits of the legal and factual real right through analysis on the different conditions, where whether exist a third party or not, can we identify the real right of the house.