借名购买经济适用房合同效力及物权归属探讨

Transference of Affordable Housing Entitlement: Validity of the Contract and Ownership of the Property Involved

借名购买经济适用房,借名人向出名人既借名又借人。对于借名购买经济适用房的合同效力以及该经济适用房的物权归属,人民法院出现了迥异的判决结果。有的判决认定合同无效,该经适房有限产权归出名人所有;有的判决认定合同有效,该经适房有限产权归借名人所有。法院判决的分歧主要聚焦在借名购房合同是否违反国家政策,是否损害社会公共利益,以及是否违反法律、行政法规的强制性规定,进而对合同效力及该经济适用房的物权归属进行判定。借名购买经济适用房协议为合同之一种,其是否有效应由《合同法》进行调整;经济适用房购买满5年或符合上市交易条件后,出名人应将该经济适用房的所有权转移登记至借名人名下。

The contracted transference of affordable housing entitlement happens when the one who is not entitled to the benefit actually pays the money for the property which is still registered in the name of the one who has the entitlement. The people's courts vary from each other when making decisions on the validity of such contracts and solving the disputes over the ownership of the property involved. Some give a verdict that the contract of the entitlement transference is invalid and the limited ownership of the affordable house still belongs to the original entitlement holder. Others decide in favor of the real buyer, who does not have the entitlement originally. The division between different court decisions lies mainly on whether the contract is against the state policy, harms public interests and violates the law and administrative regulations. This is thought to make the premise for the verdict on the validity of the contract and the ownership. We argue that the agreement on the transference of affordable housing entitlement is a type of contract, whose validity should be decided by Contract Law. The property should be registered in the name of the real buyer if the purchase has been in place for five years or the ownership of the property can be legally transferred in the market.