How should the husband and wife sell the common houses without authorization?

Legal provisions

"Supreme People's Court Civil Code Marriage and Family Editing Judicial Interpretation (1)" Article 28 One part of the house shall be sold for the joint house of the husband and wife without the consent of the other party. Those who claim to recover the house will not support it.

If one of the husband and wife punish all the common houses caused by the other party, the other party shall be requested to compensate the loss when the other party shall be requested to compensate for the loss, and the people's court shall support it.

In cases of disputes between house buying and selling contracts, the issues that are often involved in the unilateral sale of the husband and wife being sold by the husband and wife. From the perspective of judicial practice, this type of dispute can be roughly divided into the following three situations: first, the right holders registered on the property right certificate are both husband and wife, and the husband and wife signed a house to buy and sell contracts with a third party. The registered right holder is only one among the husband and wife, and the registered right holder signs a house trading contract with a third party; third, the registered right holder on the property right certificate is only one of the husband and wife, and the other party signs a house trading contract with the third party. If further detailed analysis, the above three situations can divide more types of case types from different perspectives such as whether the house is transferred to register, whether the buyer pays the price, and whether the buyer is goodwill. Given that houses are generally the most important part of the common property of the husband and wife, and even involve the basic residence rights of both husband and wife, people's courts at all levels are more cautious when dealing with such disputes. However, due to the judgment of the effectiveness of the contract, the interests of the interests between the husband and wife and the buyer of the buyer, there is a difference in equality. Rarely. In order to uniformly referee, Article 11 of the Judicial Interpretation of Marriage Law responded to the above issues. From the perspective of the implementation of this article, the effect is obvious, so when the judicial interpretation is cleaned up, the content is retained. It is just modified by the following text: (1) Change the "common co -owner" to "common ownership", and keep it consistent with Article 1062 of the Civil Code; (2) "and change the" registration procedures for real estate ownership "to" "Real estate registration" has been handled. The registration procedures for real estate ownership are oral expression, and the corresponding legal terms should be registered in real estate. Increasing the word "already" emphasized that the registration behavior has been completed.

The issues stipulated in this article are on the surface, although the effectiveness of the effectiveness of the house sale contract and the final class of the house ownership of the house ownership, but the essence of the essence is the benefit of the third party of the household and the transfer of the house, or more, or more, or more, or more Abstract is a choice between transaction security and ownership security. The reason why the conflict between different interests is caused by the non -right to sanction of the husband and wife. The so -called non -right to dispose refers to the act of punishing others in their own name. There are three main characteristics: (1) "No right" in the right to punish, mainly refers to the source of power without sanctions. Although the appearance may be shown at the time of punishment, when the punishment is implemented, the punishment is in fact there is no authority; (2) the punishment here includes not only the transfer of owners Non -transfer behavior; (3) emphasize punishment in their own name, which is different from the names of others, transcending agency rights, and interpretation agents. The latter applies to no right to proxy and the proxy rules. Regarding the right to punish, Article 51 of the Contract Law has provided rules. Judging from the logical expression of this article, the contract signed by the non -right to dispose does not have the effectiveness of the contract, which means that the sales contract does not take effect. The contract is valid unless the right to dispose after the personnel obtains the right to sanction or the right holder will be replaced. Under the premise of denying the effectiveness of the contract, the pursuit of property rights seems to be able to recover the originals directly from the buyer. Article 597 of the Civil Code changed the provisions of Article 51 of the Contract Law on the effectiveness of the contract. The expression of the contract through the "termination of the contract" was actually recognized that the person who did not have the right to punish the contract was valid, but the ownership of the subject matter did not change. At this time, if the absolute principle of ownership is thoroughly implemented and the owner of the owner is unlimited, the assignee must always be careful to find out whether the seller really has the right to punish. And guarantee transaction security. On the contrary, if the benefit of the transferee to the transfer of the transferee may be protected, it may promote fraud and conspiracy to deceive the property of others and seriously infringe on the legitimate rights and interests of the owner. In the face of the "dilemma" situation, the sense of knowledge has designed a system of goodwill to regulate.

Goodwill acquisition, also known as real -time obtaining, refers to the transferor who has no right to dispose of other people's property to the property (including real estate and real estate), which has the right to possess, is delivered or registered under the name of the buyer. The goodwill and paying a reasonable consideration, then it obtains the ownership of the property. The goodwill system is an important legal system in the mainland law and the British and American law civil law since modern times. The system of goodwill obtaining the system originated from the principle of "hand -in -hand" of the Germanic method, that is, those who deliver things to others at will, can only be returned from their counterparts. In addition to damage or other rights, the third party shall not be repaid. The purpose of its system is to coordinate the conflict between the quiet security of property ownership and the movement of property transactions. The safety of protecting property ownership is absolute protection of ownership, and the security of the movement of property transactions is the protection of property ownership. On the one hand, the system aims to ensure the security of ownership and maintain the stability of social order. On the other hand, it is necessary to safeguard the interests of goodwill and assignee to promote transactions and protect transactions. When the interests of the real rightist and the assignee of the goodwill have a conflict, they should focus on the protection of goodwills. This is not only conducive to maintaining transactions, but also to encourage transactions. Protecting good faith will enable the assignee to form a trust in the legitimacy of transactions and the incompetence of the transferee, thereby forming an incentive mechanism of the parties -inspiring them to engage in more transactions. At the same time, the restrictions on the interests of the real rights are also a kind of blame for the parties who entrust their own property to the true right holder. It is generally believed that the constituent elements of good faith are:

(1) The transferee must be goodwill. The "goodwill" here refers to a psychological state that the buyer is subjectively did not know that there is some kind of psychological state that is sufficient to affect the effectiveness of the sale behavior. Because this psychological state exists in the heart of people, it is difficult for outsiders to know, so they can only judge the objective situation of the parties when they trades. For example, based on the nature of the transfer of property, paid or free of charge, the meaning of the transaction, and the convertible work and life background, analyze whether the assignee knows or should know that the transposition is not right to transfer. If the transferee knows that when the transfer of the property ownership, you should know that or know that the transfer person has no right to transfer the property, you can determine that the transferee is subjective and there is no goodwill. As for the transferee that after the transfer, they know that there is no right to dispose of property, the transaction has been completed, and at this time, it does not affect the transferee to obtain ownership.

(2) The assignee must pay a reasonable consideration. As mentioned earlier, the system of goodwill acquisition is mainly to promote and ensure the safety of transactions. Therefore, there is no real trading relationship, it is difficult to have the basis of the application of the system. Correspondingly, whether it constitutes a goodwill can be determined by whether there is a real transaction relationship. And an important external objective sign that constitutes a real transaction relationship is to buy a reasonable consideration. It is difficult to say that if you do not pay the consideration or the price is far lower than the market price, it is difficult to say that the person who has a goodwill when trading is subject to goodwill. Take a step back, even if the assignee that does not pay a reasonable consideration is subjective, it is generally not caused by the request to return the property to the property. Interests of imbalance.

(3) Actual possession of the property. In addition to the delivery of reality, according to Article 226, 227 and 228 of the Civil Code, the performance forms of real estate delivery also include simply delivery, return request for the right of request rights, and possession. Simple delivery, that is, the assignee already possesses property, is deemed to be delivered when the contract of buying and selling property is established. The possession is determined, that is, the special agreement between the people and the assignee is that the property is still allowed to continue to possess. When the intention of the property is established, it is deemed to be delivered and the assignee obtains indirect possession. When the right to return the request, that is, when the property is possessing by a third party, the transferee will give the third party's return request right and the assignee to replace the delivery.

(4) The object is property or real estate. Real estate refers to things that can move without harming its value or use. Traditional theory generally believes that the objects obtained by goodwill can only be real estate. The reason is that only the occupation of real estate has the credibility of possession as ownership. Moreover, the transfer of property ownership is delivered. Once the delivery is delivered, the assignee will be possessing, and it can be presided over to be the owner. If you do not move or move or move, it will damage its value or use. For real estate, countries generally implement the principle of mandatory registration. Only registration can publicize ownership. The transfer possession of simply the subject matter does not transfer ownership. Only after transferring registration can the effect of ownership transfer can occur. Therefore, in general situations, there is no impossible to be assignee in real estate trading (that is, goodwill). However, in reality, there are no errors and omissions in real estate registration. In this case, people who trust the registered book should still be protected. Therefore, there is a need for real estate goodwill. In other words, once we acknowledge that the registration of real estate may also have false errors, and the registration book is credible, then people who have a good faith trust the exterior and the transaction should naturally be protected by law. In this regard, Article 311 of the Civil Code stipulates: "If the person who has no disposal right transferred the real estate or the real estate is transferred to the assignee, the owner has the right to recover; except for the other provisions of the law, the following circumstances will be in line with Obtaining the ownership of the real estate or property: (1) the transferee is goodwill when the real estate or the real estate is good; If you do not need to register to the transfer person. If the transferee obtains the ownership of the real estate or real estate in accordance with the preceding paragraph, the original owner has the right to request compensation from the person who is not punished. Applicable the first two provisions. "It can be seen that when the Civil Code stipulates the system of goodwill, it has included real estate in the category of objects obtained by goodwill. From the above interpretation of the system of goodwill acquisition, it is known that the value orientation of the system, the relationship between the constituent elements and the relevant subjects, etc., are all the legal relationships caused by the husband and wife of the husband and wife discussed in this article. Follow. Specifically, in terms of the content of this article, one husband and wife, without the consent of the other husband and wife, sells all the real estate that belongs to the husband and wife in their own name. The behavior of property is no right to punish. The conflict between the other party and the buyer caused by the husband and wife caused by the acting behavior is exactly the problem of the goodwill system. Therefore, this article draws on the provisions of the "Code of the Civil Code" on the system of goodwill.

1. How to understand that "one party has not agreed to sell the co -owned house of the husband and wife" in this article "

Article 301 of the Civil Code stipulates: "If the shared real estate or real estate, as well as a major repairs, changes or uses for the shared real estate or real estate, it shall be more than two -thirds of the shares of the shareholding. Some people agree, but except for some people. "From this regulation, it can be seen that unless there is an agreed between the co -owner, the common person to discipl it. Other people's ownership. Given that the joint property of the husband and wife is also a common property, the provisions of the above -mentioned "Civil Code" provisions are drawn from the drafting process. Correspondingly, combining the above provisions of the "Civil Code" clarify what is "common houses of husband and wife" and "without the consent of the other party", it is important to understand and apply this article.

(1) All houses of husband and wife

All houses of husband and wife, literally, refer to the ownership of the husband and wife to the house. According to the theory of civil law of the mainland law, ownership can be divided from quality and quantity. When the part of the ownership is separated from the ownership instead of its right, it is the quality of the ownership, such as the "superior ownership" and "lower -level ownership" in the Germanic law, and the mortgage rights, land service rights, etc. on the ownership of the ownership, etc. It belongs to the quality of the ownership; and when the same property shared the rights of the ownership when the same property is shared by the two or more people. The division of ownership is the common sense. According to the provisions of Article 297, 298 and 299 of the Civil Code, the common ownership includes common and common sharing. According to the shareholding, the common person has the right to share the share of the common property according to its share. Co -ownership refers to the common relationship based on a certain common relationship, and shall have the ownership of the common property. The common relationship here generally refers to the combination of two or more people formed by the combination of common purposes. It mainly includes the relationship between husband and wife, family relationship, and inheritance inheritance. In summary, the husband and wife's common houses can interpret two situations in the literally as the husband and wife shared and husband and wife. Among them, the husband and wife can be manifested in practice as the coexistence of the husband and wife's specific property before marriage, the husband and wife after marriage, etc. However, the definition of my country's marriage legislation to the common property of the husband and wife generally does not include the shared situation of the husband and wife. Article 1062 of the Civil Code stipulates that the following property obtained by the husband and wife during the existence of the marriage relationship is the common property of the husband and wife, and the husband and wife are owned by the husband and wife. The law clearly states that the "Civil Code" is a legal husband and wife property system for the post -marital income. The so -called joint system after marriage refers to the property system that the husband and wife co -shared by the husband and wife, which is the property of the husband and wife during the existence of the marriage relationship and the common income of the two parties. It can be seen that the houses purchased after the marriage of husband and wife are generally shared by husband and wife. This explanation also adopts the same position as the "Civil Code", that is, the "husband and wife shared house together" in this article specifically refers to the co -owned houses of the husband and wife, instead of containing the husband and wife as well as the house. This is because in accordance with Article 301 of the Civil Code, in addition to the total agreement of the common person, the shared real estate shared by the common person should only be agreed by the share of more than 2/3 of the share. When the husband and wife have a total of more than 2/3 of the house share, the sale of the house generally does not require the other party's consent. This article is based on the husband and wife's sales behavior without the right to punish. (2) How to determine whether the other party agrees

Article 301 of the Civil Code stipulates that the common property shared by co -shared people must be agreed by all co -owners. Applicable to the relationship between the husband and wife, which means that one of the husband and wife shared all the real estate of the husband and wife should be agreed as the other husband and wife who shared as a common co -owner. In judicial practice, there is a difficult fact that the dispute is difficult to grasp the fact that the other party is agreed with whether the other party agrees to the sale. In this regard, we believe that when specifically determine whether the husband and wife agrees, you need to pay attention:

First, how to determine whether the other party's other party makes an intention. The consent within the legal framework is the intention. The so -called expression refers to the representative of the person to others, and accordingly, to others, according to its meaning, a specific legal consequences should be effective. [3] Reflected in daily life, the other party agreed to sell their spouses to all houses of the husband and wife, which may have a variety of expressions such as written, verbal, telephone and electronic data. In this regard, the third party can prove it in the lawsuit. However, it is worth noting that in real life, there are also many third parties who sought another opinion of the husband and wife when signing a contract with a common house for sale. According to Article 140 of the Civil Code, "the perpetrator can explicitly explicitly or implies the intention. Silence can only be regarded as the meaning of the transaction habit of the parties, or in accordance with the transaction habits of the parties, or in accordance with the parties. The closeness of the husband and wife relationship. If the other party has not expressed their opinions on the sale of the house, but the behavior has indicated that it agrees to sell it, it can directly determine that it has implied the sale. As for the consent of the husband and wife, the consent is in advance or the consent of the post -after -to -afters is not asking.

Second, how to understand the scope of the meaning of "consent". In judicial practice, the other party often participates in the preliminary consultation process of the house sale contract, but it is not present at the last signing. If the price of houses rises afterwards, the other party is often not present at the time of the contract, and the contract price signed at the end is required to retrieve the house. In this regard, pay attention to whether the scope of the meaning of consent includes the sale price, payment method, delivery time, etc. We believe that from the special nature of maintaining the security of transactions and the relationship between the personal and property of husband and wife, the consent of this article should agree with the other party's general authorization to sell the house for their spouses. That is, as long as there is evidence to prove that the other party of the husband and wife has made an intention to sell the house, that is, it should be determined that the consent of the consent of the sales price, payment method, delivery time and other matters for their spouse should be determined. If the other party to deny the consent of the summary, it must be evidenced that the intention of selling the house to sell the house for the sale of the house is clearly not included in the above matters. 2. How to understand the "third -party goodwill purchase and pay reasonable consideration" in this article

Judging from the provisions of Article 311 of the Civil Code, my country's real estate goodwill system aims to maintain the safety of real estate transactions, which protects the trust of the third party's record of the registration book. In judicial practice, the following points should be paid to the understanding of "goodwill" and "reasonable consideration" in "third -person goodwill" and "reasonable consideration":

(1) The criteria for identification of "goodwill"

Since whether goodwill is the subjective psychological state of a third person, others cannot directly explore them. Therefore, in practice, there are different opinions about what is "goodwill". For real estate, at least the following four determination criteria: (1) the so -called goodwill, which refers to the right to do nothing with others, and whether it is lost; If people do not give up and rights, whether they are over and overwhelmed, but according to the situation of the objective situation, in terms of transaction experience, the average person can determine that those who have no right with others should be considered malicious; Refers to the unknown or unknown to let people have no way to give, (4) the so -called goodwill should refer to the German legislation and interpret it as a must -know or because of the big loss and unknown to others. However, the system of goodwill and concessions of the goodwill is to take into account the legislative purpose of all people's interests and transaction security. The transferee should pay attention to whether they have the right to transfer with others. Whether the assignee is fulfilled here should be judged according to the specific trading scenario and situation. For example, the real estate purchased in public and standardized trading venues should generally be identified as the obligation to pay attention to the attention, and the buyer purchased in non -public places and locations should be dedicated to higher people. Pay attention to obligations -for example, it is required to provide a legal voucher for real estate.

In terms of real estate including houses, whether to refer to the "goodwill" standard in the goodwill obtained by the real estate requires that third parties must not have significant views on the basis of trusting real estate registration. One point is that houses are generally the most important and valuable property types of individuals or families. Especially in marriage and family relations, houses that are common as husband and wife are often involved in the living rights protection of family members. Therefore, if you do n’t know that the registry record is wrong and there is no objection to the registration book, it is a standard for goodwill, and the other party must prove that the house has obtained the record of the real estate registry. Obviously, information asymmetry determines that it is difficult to prove that the third party's heart is not good. In addition, from the perspective of daily practice, the registration authority is not uncommon to register all the property of the husband and wife in the name of the husband and wife based on various subjective reasons. Therefore, the goodwill of a third party with major faults should be excluded and their attention obligations are aggravated to protect the legitimate rights and interests of the other party. The above views are not comprehensive. We believe that the assignee of real estate can make it a significant loss without knowing that letting people do not give up and rights as non -goodwill, but for houses as real estate, the third party's trust in real estate registration should be registered with real estate registration. As a criterion for judging whether it constitutes the goodwill of real estate. Under normal circumstances, as long as the third person trusts real estate registration, it should be determined that it is goodwill, unless there is evidence to prove that it knows that the real estate registration is wrong or there are objections in the registry. The goodwill here is not based on the premise of further verification of the registration matters. The reason is:

1. The registration of the housing right is not caused by a third party. It is difficult to find out the actual situation of the inconsistent registration. At present, due to the lack of legal knowledge of the people, the lack of responsibility of the staff of the registration authority, and the low degree of social integrity, the real estate registration has occurred from time to time. From the perspective of house registration practice, a large number of registered books are caused by no right to punish those who have no right to use various application materials. For example, the common fraud and fake behaviors in house registration practice are mainly manifested as the use of fake identity card application registration and forgery of commissioned notarization documents and judicial referee documents. In the case of all property registered in one party, there are many even as a result of the convergence of both the husband and wife or the other party. For the above -mentioned unknown situations, it is difficult to find a professional registration agency, let alone a third person who does not have professional knowledge. Therefore, it is obviously not appropriate to pass the risks of unrealistic registrations to the obligation of the real owner to the third party, which is obviously not appropriate. Moreover, this practice of improving investigations and verification obligations can neither improve transaction efficiency nor ensure transaction security. 2. Trusted by the third party's trust in the register of the house as a goodwill judgment is not rejected by the pre -prevention of the other party of the husband and wife. According to the provisions of Article 220, paragraph 1 of the Civil Code, the right holder can apply for correction registration when the records of the registry discovery the registry can avoid losses due to the goodwill of others. Even before the correction registration is completed, the right holder can apply for objections to register in accordance with the provisions of Article 220, paragraph 2, paragraph 2 of the Civil Code to avoid the third person's goodwill. It can be seen that the correction registration and objection registration stipulated in the "Civil Code" is a pre -prevention measure provided by the risk of preventing the real rights from being good at obtaining the ownership of their houses. If the third party has a certain attention as a "goodwill" standard in addition to the trust registration, it will make it difficult for the house registration system to obtain a goodwill system in practice, and it will also make the relevant regulations on correction registration and objection registration may be reduced. For a piece of paper.

3. The damage of the rights and interests of the other party can be fully relieved afterwards. If the reason for the false registration is caused by the error of the registration authority, the loss of the other party can be compensated. Article 220, paragraph 2, paragraph 2 of the Civil Code, is responsible for the liability of the registered agency to cause the real right holder's damage to the damage of the real right holder. When people are in good faith and are damaged, even if there is no fault in the registration agency, they should bear the liability for compensation to the other party. If the registration is not true due to one of the husband and wife, the other party can also require the other party to compensate the losses during the divorce through the provisions of this article 2. This regulation is sufficient to protect the legitimate rights and interests of the real right holder. Therefore, there is no need to over -protect the real right holder in the third party's "goodwill" judgment standard and increase the attention obligations of no major fault.

4. The criteria for judging whether the trustworthiness is "goodwill" is simply and clear, which will help unify the judicial tailoring. Judging from the current judicial practice of various places, the criteria for identification of good deeds are different. For example, there are not only the identification of the third party's goodwill with the appearance of the other party's behavior, but also the determination of the third party's goodwill after the false attorney or notarized attorney issued by the husband and wife. Therefore, if the extension of the third party's "goodwill" to the extension of the "goodwill" to a certain attention obligations and no major fault, based on the abstraction of the obligations and the majority of the words, it is inevitable Delayed inconsistent understanding. When the goodwill is limited to the trust of registration, when the judicial determination, you only need to consider whether the owner who is registered is consistent with the husband and wife and has no objection to register. Relatively speaking, the latter obviously has an advantage in judicial identification and unified judicial tailoring.

(2) Problem responsibility distribution of "goodwill"

From the perspective of the parties' position, the proved responsibility can be summarized as that when the facts exist or not, the parties will bear the danger or not recognized or not recognized by the fact that the facts that are beneficial to their own advantages. Benefit. This is the so -called proof of responsibility or proof. It can be seen from this definition that the assignment of the responsibility to the referee will likely affect the results of the referee. Regarding the distribution of responsibilities obtained by real estate goodwill, the legislative views at home and abroad are basically the same. In the real estate goodwill, it should be presumed that the obtaining person is goodwill, and the obtained person who fails to prove that he is goodwill is a goodwill, and the third party (often the real right holder) shall bear the responsibility. Freedom evidence is solved by this problem. Specific to the specifications of this article. Because the registry is guaranteed by the national reputation and is highly credible, its "right to express" is higher than the possession of real estate. Moreover, Article 216 of the Civil Code also clearly acknowledged the positive effect of the registry. Therefore, in the distribution of proof liability, in principle, the husband and wife who deny the third party as a goodwill shall bear the responsibility for the certificate. If it cannot prove that it is maliciously obtained, the third party should be good.

(3) The time node of the third person's "goodwill" state

It can be seen from the experience of daily life that the real estate transfer registration process takes a period of time, and it is impossible to complete instantly. According to Article 20 of the "Interim Regulations on Real Estate Registration", "Real Estate Registration Agency shall settle the procedures for real estate registration within 30 working days from the date of acceptance of the registration application, except the laws stipulated by the law", determine that the third party's goodwill will be determined On the issue of time nodes, at least there are options such as the time for registration, the time for the registration agency to accept the registration, and the time to complete the registration. We believe that it is more reasonable to set the time point of judging whether the third party is good at good faith in the register. The reason is: (1) Article 31), paragraph 1, paragraph 3,, clearly stipulates that the transferred real estate that shall be registered in accordance with the law. Therefore, the time in the register as a register is more in line with the legislative intent of the Civil Code. (2) The time node of the application for transfer registration and registration agency is too early, which is not conducive to the protection of the rights and interests of the other party. Although the system of goodwill is set up for transaction security, this does not mean its indifference to the ownership of the real right holder. Based on the requirements of the principle of integrity, the transfer registration has not been completed, and the third party has not yet obtained the credibility of the real estate, and the registration application should be withdrawn after knowing that the registration book is not true. In fact, relevant administrative regulations also stipulate the withdrawal application. For example, Article 15 of the Interim Regulations on Real Estate Registration stipulates that the parties or their agents shall apply to the real estate registration agency for real estate registration. Real estate registration agencies record the application for registration in front of the real estate registration book, and the applicant may withdraw the registration application. (3) The Interpretation of the Civil Law Dianli Rights (1) Article 17 also stipulates that "when the assignee transferee should be real estate or real estate", it refers to the time when the transfer of product rights transfer is completed in accordance with the law. (4) The identification of reasonable consideration

"Reasonable consideration" means that the value of the house is basically the same as the value of the property, and the situation of unreasonable low prices or free transfer is excluded. In this regard, you can grasp from the following aspects:

1. The premise of good faith is paid transactions. One of the constituent elements stipulated in Article 311, paragraph 1, paragraph 2, paragraph 2 of the Civil Code is "transferred at a reasonable price". The reason why this is the reason is: (1) more conformity to protect the interests of the real right holders. If a third party can obtain the right to realize the right to make goodwill based on the unpaid behavior, then the real right holder can only use the third party to exercise improperly to return the request right. As a kind of ordinary creditor's right, the right to return the request is not prioritized in the case of obtaining bankruptcy. On the other hand, if the third party cannot obtain real estate through the goodwill of the third party, even in the case of a third person's bankruptcy, the real right holder can still exercise Essence (2) It is more in line with the people's expected balance between the safety of all power and the security of the transaction. Generally speaking, relatively simply use transaction security as a legislative basis for obtaining the property of others through the system of goodwill, restricting goodwill gain in the field of paid transactions, and more legitimacy and reasonable, and the public is easier to accept.

2. How to determine "reasonable consideration". Article 311, paragraph 1 (1), paragraph 2 of the "Civil Code" not only requires that third parties must obtain motion product rights through paid legal behavior, but also require that the price must be "reasonable". Generally speaking, the price is a description of the currency value, which is mainly suitable for the situation of buying houses in the form of currency. In real life, it is not uncommon for things to change the house. At this time, the so -called "price" is defined, it is inconsistent with the actual situation. In view of this, we borrowed the above provisions when we draft this article, and replaced the "price" with "consideration" to avoid the vagueness of the language.

Regarding how to judge whether the consideration is reasonable or not, there are two main different opinions in the theory: one is subjective standards, emphasizing the subjective recognition of the seller's subjective price; the other is objective standards, and the general concept of society as the basis for judgment. We believe that to determine whether the third party pays reasonablely when obtaining the ownership of the house, it should generally be based on subjective standards. As long as the contract between the contract has completed the transfer registration, it should be made up to reasonable. Unless the husband and wife have proved that the price difference between the price and the similar houses of the market or the judge is sufficient to determine that the consideration is indeed a significant affection. In special circumstances, the court can also transfer the disputed houses to the house valuation agency for valuation. Considering the individual differences in market transactions and the variability of the transaction market, as long as the assessment of the price and the contractual consideration does not have a significant difference, the consideration should be determined that the consideration is a reasonable category. In this regard, Article 18 of the Interpretation of the Civil Law Dianli Rights (1) also stipulates that "reasonable prices" should be based on the nature, quantity, and payment methods of the transfer of the subject. Factors comprehensive identification.

3. Reasonable considerations should be actually paid. In our country, in addition to the ability to maintain transactions, in addition to the ownership of real estate or non -moving product rights by determining that the ownership of real estate or non -moving product rights, it also has the function of adjusting the change of improper interests. In other words, the system stipulated in my country's laws and regulations has both the function of improper profit system. Otherwise, in the constituent elements of goodwill, it will not only specify that it must be paid transactions, but also stipulates that the price should be reasonable. It can be seen that from the original intention of the Civil Code, the system of goodwill has both the function of improper profit system. Therefore, we believe that the so -called consideration refers to the actual payment. When paying attention to the understanding of the above points, we must also pay attention to the correct application of this article: the seller and the buyer have completed the registration procedures for real estate ownership in the relevant departments, and the property rights have been transferred. Regarding the relevant provisions of the transfer of real estate rights, you can refer to the relevant provisions of the Civil Code, which will not be interpreted here.

[Issues should be paid attention to in the practice of trial]

1. The husband and wife have no right to recover the family's common living room

In the process of drafting this article, whether the other party can recover the house in the process of this article, the earliest did not distinguish between the housing use. Some experts have proposed that the exception should be specified, that is, the other party can recover the houses that belong to the family's common living and living. The specific reasons are: (1) Survival and residence rights are basic human rights. One of the couple will unauthorize the family's only set of houses for sale. If the claim of goodwill third parties will also be supported, there will be no one to return to the other side of the husband and wife. result. This result is obviously hindered the kindness of society. (2) Foreign legislation has precedent provisions. For example, in related laws such as Germany, the United States and other countries, families with common housing are applicable to the system. We believe that the concept of "family common living room" is difficult to operate in practice. If a third party exhausted all the property, the house was still unable to obtain the house, and the other side of the husband and wife recovered luxury houses such as villas and apartments on the grounds of the so -called family living houses, which was obviously inconsistent with the general concept of society. In addition, "the needs of family living together" itself is a subjective question. Different people have different understanding, so it is difficult to uniformly grasp the judicial tailoring. Take a step back, even if from the perspective of social harmony and stability, it is necessary to protect the survival and residence right of the other party in a special situation, and you can also do not execute the only house in the civil execution procedure. In this regard, the implementation procedures of the Civil Procedure Law have been reflected in the relevant provisions of the implementation procedures, and there is no need to repeat the regulations in judicial interpretation. In summary, weighing a balance between protecting the security of transactions and maintaining the interests of the family and the stability of the two, and it is not advisable to make exceptions to "family common living houses".

2. The constituent elements of the husband and wife request compensation for losses

One of the couples stipulated in this article request compensation for compensation for property infringement damage compensation. However, considering the personal relationship and property relationship between the infringer and the infringement due to the marriage relationship, there are several issues that need to be clear in the trial practice:

1. The husband and wife should apply for the loss of compensation for this article. The "Civil Code" shares the principle of co -sharing of the property of the husband and wife. The couple agreed to be an exception. Before the property was divided, all property belonged to the common part of both parties. That is, the compensation of the other party's compensation from the other side to the return is generally commonly shared by the husband and wife. This has undoubtedly made compensation in marriage lost its original meaning to one party's economic compensation. Moreover, such as the premise of divorce in marriage, it is bound to affect the relationship between husband and wife after compensation, which is not conducive to the long -term stability of the marriage relationship. Therefore, it is generally believed that during the existence of the marriage relationship, one of the couples cannot ask for damage compensation from the other party. In this regard, Article 88 of this explanation also clearly stipulates that one of the husband and wife can only request the other party to compensate for the loss when the divorce lawsuit is filed. Based on the above reasons and the coherent considerations of guiding ideology of judicial interpretation, when we punished one of the husbands and wives in this article, when all the houses were jointly caused by the other party, the other party requested the compensation for compensation. In the following, the damages cannot be filed separately.

2. Compensation and loss here does not involve mental damage compensation. Although the "damage compensation" in Article 86 of this explanation clearly stipulates the "damage compensation" in Article 1091 of the Civil Code as a compensation for material damage compensation and mental damage compensation. However, as far as the objects of this article are concerned, the property interests of the house are only targeted at the property interests of the house, which is far from Article 1091 of the Civil Code. Some opinion believes that although in the property damage, in addition to the damage of property damage, the actor's violation may also cause the infringement to the inner displeased or even psychological and emotional damage caused by the property caused by the property. Equity can cause mental damage. This is because the infringement of the ownership of real estate generally does not directly cause the physical and mental pain of the infringed people, and it is difficult to directly cause the spiritual losses of the infringement. If any infringement will cause mental damage, it will induce the right to abuse lawsuits by the infringement and use mental damage compensation as a tool to seek improper benefits. We agree that on the premise of the premise that Article 1183 of the Civil Code has clearly defined the compensation of mental damage in the category of personal rights and interests. If the parties still provide mental damage compensation in accordance with this article, the people's court should not support it.

Source: This article is selected from the first court of the Supreme People's Court Civil Trial "Supreme People's Court Civil Code Marriage and Family Editing Judicial Interpretation (1) Understanding and Application" (People's Court Press, the first edition of July 2021), a family of legal affairs

- END -