论被代理人直接取得买卖物的所有权

On the Principal’s Ownership of Directly Obtaining the Subject in Transactions

在显名代理关系中,买卖合同系被代理人和出卖人的合意,被代理人不但承受买卖合同项下的债权债务,而且直接取得买卖物的所有权,代理人对买卖物为占有辅助或媒介占有关系。无论买卖物为动产抑或不动产,这一结论都不改变。隐名代理动产买卖在适用《民法典》第925条时,其法律效果与显名代理动产买卖相同,即由借名人直接取得买卖物的所有权;若适用《民法典》第926条的规定,当出名人披露、借名人行使介入权且出卖人选择借名人承受动产买卖合同项下的法律效果时,则借名人直接取得买卖物的所有权。对于隐名代理不动产买卖,有权处分说认为出名人取得不动产所有权,无权处分说则主张借名人直接取得不动产所有权,其路径有三:第一,把不动产物权登记在出名人名下的现象视作登记错误,在出名人和借名人的内部关系中,将不动产物权归属于借名人;第二,把为借名人的利益承受房屋登记的出名人看成“借名人方面的人”,即“取得媒介人”,出卖人向其办理不动产转移登记等于向借名人转移登记;第三,区分内部与外部关系,在外部关系中,出名人依不动产物权登记成为不动产物权人,而在内部关系中,借名人径直取得不动产物权。由于借名购房处于代理关系的架构中,故借名购房合同应被视为借名人与出卖人之间的合意,由借名人直接承受相应的权利义务。

In a named agency relationship,the sales contract is the agreement between the principal and the seller.The principal not only assumes the rights and obligations under the sales contract,but also directly obtains ownership of the subject in transactions.The agent serves as an auxiliary or intermediary possession of the subject in transactions.Whether the subject in transactions is movable or immovable,this conclusion remains unchanged.When applying the Article 925 of the Civil Code to the purchase and sale of movable property through anonymous agency,the legal effect is the same as that of the purchase and sale of movable property through anonymous agency,where the borrower directly obtains ownership of the purchased property;According to Article 926 of the Civil Code,when the name owner discloses,the borrower exercises the right of intervention,or the seller chooses the borrower to assume the legal effect under the movable property purchase and sale contract,the borrower directly obtains ownership of the subject in transactions.The theory of having the right to dispose of real estate through anonymous agents claims that the name owner has acquired ownership of the real estate,while the theory of having no right to dispose claims that the borrower directly obtains ownership of the real estate,or that the phenomenon of real estate rights being registered under the name of the name owner is considered a registration error.In the internal relationship between the issuer and the borrower,real estate rights belong to the borrower;Or consider the name owner who bears the registration of the house for the benefit of the borrower as a“person on the borrower's side”,that is,a“intermediary”,and the seller's transfer of registration to it is equivalent to transferring registration to the borrower;Or to distinguish between internal and external relationships,in external relationships,the name owner is registered as a real estate owner based on real estate property rights;In internal relationships,borrowers directly acquire real estate rights.Due to the fact that buying a house under a borrowed name is within the framework of an agency relationship,the contract for buying a house under a borrowed name is considered as a consensus between the borrower and the seller.