The legal basis and legal relationship of registering real estate under other person’s name – focusing on the boundaries of contract freedom and the onus of proof
Advisor：Professor Chun-Lang Chen
National Cheng Kung University Department of Law
This research touches upon a few problems of registering real estate under other person’s name in Taiwan.
Different opinions have been voiced over years whether or not real estate contracts registered under another name may be considered valid: in the distant past such possibility was completely denied, more recently it was completely accepted, and nowadays it is only accepted under certain conditions. Based on these alterations, this research aims to discuss the legal relationship and the extent of freedom available for such contracts.
Apart from that, we will touch upon the problem of ownership attribution and see that the solution to the problem depends on the validity of the contract and that real estate registration is closely connected with the security of third-party transactions.
The ownership attribution of real estate registration determines how the party borrowing the name may claim back the real estate registered under another person's name. This research will discuss whether the party providing the name may sell the property in question and how the party borrowing the name can bring a lawsuit.
Different opinions have been voiced upon the question whether certain actions of the parties involved can be regarded as false crime report or breach of trust.
The outcome of a lawsuit regarding real estate registration under another person's name largely depends upon the presence or absence of legal relations within the case. This research will present some court decisions on the matter to prove this point.
real estate contract registered under another name, boundaries of contract freedom, unauthorized disposition, onus of proof
In case the party providing the name is different from the party holding the ownership of the real estate in question, the party borrowing the name may produce the related documentation and claim the real estate in question back from the party providing the name. Even though the contracts of this kind are not explicitly mentioned in Civil Law Codex of ROC, but according to the presumption of contract freedom they are still considered valid. However, there are different opinions on whether or not contracts registered under another party’s name belong within the boundaries of contract freedom. Another problem is the ownership of the real estate in question. The person providing the name holds the title for the real estate in question, but does he have the right to pass the real estate to a third party? The way for the litigant to retrieve his property highly depends on the answer to this question. The burden of proof of borrowing other’s name for registration should belong to the name’s borrowers. The name’s borrowers must submit relevant evidence; otherwise they would lose the lawsuit. Contracts of borrowing another person’s name often don’t have a written form, and that is why this thesis especially focuses upon the ways of obtaining the evidence of the contract’s existence.
MATERIALS AND METHODS
The most frequent reason for people to bring a lawsuit regarding registration under another name is the question of ownership of the property in question. However, not only property can be registered under another name, and when there is no property present all the problems can be solved by cancelling the contract. Here we are not going to discuss this kind of contracts and will focus only on the cases where disposition of property is involved and on the lawsuits between the parties providing the name and the real owners of the said property. Besides, we will restrict the discussion to the cases dealing only with real estate disposition.
As for the methods we use in this research, we will list and analyze a number of recent sentences in civil and criminal cases and a few theories related to the subject. Other than that, we will study a number of domestic cases, court sentences, law scientific papers and legislation history of ROC with the aim of fully describing the state of real estate registration under another party’s name in our country. After that, we will discuss the similar cases and regulations outside the borders of ROC, such as the “Act on the registration of real estate under actual titleholder’s name” of Republic of Korea.
The ultimate goal of this paper is to provide some solution to the problems in real estate registration under another name native to Taiwan. To find this solution we should consider our customs dealing with this matter. As for contracts registering real estate under another party’s name, we will try to outline some possible way for their further development in Taiwan.
In Taiwan there is no counterpart for Korean “Act on the registration of real estate under actual titleholder’s name”. The validity of contracts registering real estate under another party’s name is acknowledged based on the presumption of contract freedom. A contract registered under another party’s name can be only considered valid if there is an agreement between the parties involved, i.e. the party providing the name and the party borrowing the name. The court usually decrees that contract is only valid if the party borrowing the name makes use of the property in question, however, we do not agree with this statement.
As for the abovementioned question, “does the party providing the name for a real estate registration contract have the right to pass the real estate to a third party?”, we believe that the answer to it fully depends upon the evidence the parties involved can provide for the court.
In conclusion, we will discuss how one can meet the onus of proof in cases concerning registration of real estate under another party’s name. To meet the onus of proof the party borrowing the name does not need to submit the evidence of making use of the real estate in question. Civil litigations should be solved according to the Civil Code of ROC so as not to infringe upon the civil rights of the party borrowing the name.