不动产物权变动登记之实与虚--以我国台湾地区借名登记契约之相关问题为说明

On Actual and Virtual Effects of Registration for Real Property Rights Transfer——Explanations of Issues concerning Contracts for Registration under the Other's Name in Taiwan Region

不动产物权变动系以登记作为公示方法,进而产生对抗第三人的效力。我国台湾地区的借名登记契约是经实务长期发展而来,当事人之间自行约定,一方以他方名义登记财产之权利人,但仍保留财产之使用、收益及处分权限。其定约目的游走于合法与非法之间,对于其有效性,司法实务和学说上均有争议。厘清借名登记契约的概念性质、意义和效力对于不动产物权变动的理论丰富和实务发展十分必要。

The real property transfer is publicized by registration thus generating effects against third par- ties. In Taiwan Region, contracts for registration under the other＇ s name have developed for a long time in prac- tice, in which parties concerned reach the agreement that one party registers his or her property in the other party＇ s name as title - holder, but keeps the fights to use, to obtain proceeds from and to dispose the property on his or her own. The purpose of such contracts is considered between legal and illegal and the legal effects have aroused controversies both in judicial practice and academia. Therefore, it is rather necessary to analyze the nature of concept, the significance and effects of contracts for registration under the other＇ s name so as to enrich both the theory and practice of real property rights transfer.