父母以其未成年子女房产设定抵押行为的效力——最高人民法院相关判决评析

On Effect of Setting Mortgage by Parents on Their Underaged Children's Property

未成年人为其名下房产所有权人,不宜将父母出资购买而登记在其名下的房产认定为家庭共有财产。父母抵押该房产的行为,应推定为非为子女利益,除非相对人确能证明系为子女利益。非为子女利益的抵押行为不属于无权处分行为。父母的追认亦无从令子女自行实施的非为其利益的抵押行为生效。现行法给未成年人提供的救济有限,一概认定抵押行为有效缺乏正当性。宜将非为子女利益订立的抵押合同定性为超越对法定代理权之法定限制的无权代理行为,于此并无表见代理适用的空间,唯子女成年后的追认可令其生效。

A minor is the owner of the realty under his name,and it is improper to define the realty bought by his parents and registered under his names as family＇s common property.The mortgage by parents should in principle be presumed not in the children＇s interests,unless the counterpart can prove for the opposite side.The mortgage not in the children＇s interests is not unauthorized disposition,and the mortgage by the children not in their own interests cannot be made valid under the parent＇s ratification.The reliefs provided by current law for minors are limited,so it is lack of justification if the mortgage is identified as valid in any case.The mortgage contract signed not in the children＇s interests should be defined as unauthorized agency beyond the legal limitations on the agency power granted by law,where the apparent agency does not apply,and the only way to make it valid is the own ratification of the children when they become adults.