Yue said that the contract | Is it a gift if the parents contribute to the house registered in the name of the minor child?
【Zhuhai lawyer, Zhuhai legal consultation, Zhuhai law firm, Jingshi law firm, Jingshi Zhuhai law firm】
整合 | 京师杭州律所媒体部
Source | Jingshi Hangzhou Law Firm
■Beijing Jingshi (Hangzhou) Law Firm
Declarations
1. The purpose of this column is to popularize the Civil Code and exchange and learning, and the views in the article only represent the author's own and are for reference only.
2. In order to concisely explain the problem, the column will make appropriate modifications or simplifications of the cases taken to make the focus highlighted, which is hereby explained.
Is it a gift if the parents contribute to the house registered in the name of the minor child?
2024/4/23
Unless otherwise specified, the legal provisions of this article refer to the Civil Code.
A and B registered their marriage in 2001, gave birth to a son C in 2004, and in May 2019, A and B divorced by the court. In October 2015, A, as C's guardian, signed a Commercial Housing Sales Contract with a real estate company on behalf of C, and the buyer of the contract signed the contract as "C's guardian's mother: A". The purchase price was paid between March 2014 and 2015. In December 2019, A handled the immovable property registration of the house involved in the case for C.
The court also ascertained that B's self-statement issued in April 2017 stated that "C already has two properties under his name, which I purchased for my children, and the real estate certificate of a house in Bi Mouyuan (i.e., the house involved in the case) is in the process of being processed." I have given a lot for the benefit of my children. "In March 2021, B applied to the Real Estate Registration Center for objection registration on the grounds that A had registered the property in question under C's name without his consent. Subsequently, B filed a lawsuit with the court, requesting that the ownership of the house involved in the case be confirmed in accordance with the law as jointly owned by A and B. C argues that the property in question has been registered in 2019 and the gift has been completed.
The court of first instance ruled that the house involved in the case was jointly owned by A, B and C, and the original judgment was upheld in the second instance (see [2022] Lu 03 Min Zhong No. 121 Civil Judgment).
This case involves the following three issues: first, the probative effect of the certificate of ownership of immovable property, second, the standard of proof of the fact of gift, and third, the ownership of the house involved in the case.
If the parents contribute to the purchase of a house registered in the name of their minor children, the ownership of the house is considered to be a gift from the parents to the minor children, and some are considered to be the joint property of the husband and wife, and some are considered to be the joint property of the family. In this issue, we will talk about the relevant legal issues that are easily confused in practice based on cases for reference.
1. Probative effect of the certificate of ownership of immovable property
Article 217 of the Civil Code stipulates that "the certificate of ownership of immovable property is the proof that the right holder enjoys the right to the immovable property". Therefore, in practice, many people believe that the ownership of a house depends on who is the right holder registered in the property right certificate (real estate certificate). If the house purchased by the parents is registered in the name of the minor child, the house shall be considered as a gift from the parents to the minor child, and the ownership of the house shall belong to the minor child.
However, it should be noted that if the interested party has conclusive evidence to prove that the right holder recorded in the immovable property register does not match the real situation, the interested party may apply for correction of the registration, and if the right holder recorded in the immovable property register does not agree to the correction of the registration, the interested party may apply for the registration of the objection and file a lawsuit within 15 days from the date of the registration of the objection (Article 222) 。 In this regard, Article 2 of the Interpretation of the Property Rights of the Civil Code also clearly stipulates that "if a party has evidence to prove that the record in the immovable property register is inconsistent with the real right status, and that he is the real owner of the real right of the immovable property, and requests confirmation of his or her enjoyment of the real right, it shall be supported." ”
Accordingly, the next question to be discussed is whether A and B's parents (mainly B) have expressed their intention to donate the house in question when they contributed to the purchase of the house registered in C's name.
2. The standard of proof of the fact of the gift
The so-called "gift contract" refers to a contract in which the donor gives his property to the donee free of charge, and the donee expresses his acceptance of the gift. It should be noted here that the standard of proof of the fact of gift is not the "high probability" standard, but the "beyond reasonable doubt standard", which is the highest level of proof.
The so-called "high probability standard" refers to the fact that the court finds that the existence of the facts to be proved is highly probable based on the results of the review and judgment of the evidence proving the facts to be proved, and in combination with other relevant facts, that is, the facts should be determined in accordance with the law. Paragraph 1 of Article 108 of the Interpretation of the Civil Procedure Law clearly stipulates this standard of proof: "Where the people's court is convinced that the existence of the facts to be proved is highly probable after examination and consideration of the evidence provided by the party who bears the burden of proof, it shall determine the existence of such facts." ”。
The so-called "standard beyond reasonable doubt" means that the evidence needs to allow the judge to exclude any possible reasonable doubt in order to prove the existence of the facts to be proved. Paragraph 1 of Article 86 of the Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Civil Proceedings stipulates that "if a party proves the facts of fraud, coercion or malicious collusion, as well as proves the facts of an oral will or gift, and the people's court is convinced that the possibility of the existence of the facts to be proved can be eliminated beyond reasonable doubt, it shall find that the facts exist." ”
Third, the ownership of the house involved in the case
Knowing the standard of proof for determining whether the fact of the gift is established, let's take a look at how the court determines the ownership of the house involved in the case in light of the court's judgment (the courts of first and second instance elaborated in detail from different perspectives).
The court of first instance held that, firstly, the fact that the house involved in the case was a joint gift from A and B was not established. In this case, C asserted that he was the owner of the house involved in the case, mainly based on the "Commercial Housing Sales Contract" and the registration of real estate rights, and held that the real estate involved in the case was jointly donated by A and B. Since A and C did not adduce evidence to prove that the signing of the Commercial Housing Sales Contract and the handling of the real estate property right certificate involved in the case had been authorized or agreed by Plaintiff B, and Plaintiff B raised an objection to the registration, the court of first instance could not determine that B, as one of the investors, had continued to agree with Defendant C as the buyer and property owner of the real estate involved in the case.
Secondly, the argument that the gift of the real estate involved in the case was completed is not valid. Paragraph 1 of Article 658 of the Civil Code stipulates that the donor may revoke the gift before the transfer of the right to the donated property, and Article 659 stipulates that if the donated property needs to go through registration or other formalities in accordance with the law, the relevant formalities shall be completed. According to the above-mentioned legal provisions, for a general gift contract, the donor has the right to revoke the property at will before the transfer of the donated property, and the donor shall go through the formalities such as property registration on the premise that the donor does not exercise the right of arbitrary revocation, and the signing of the real estate contract and the registration of the real estate right involved in this case were handled by the third party A alone without the participation, authorization and consent of B, which was flawed in his conduct and deprived the plaintiff B of his right to know as one of the investors to a certain extent. Even if B has expressed his intention to make a gift, it violates his right of revocation at will.
Third, the "Self-Statement" involved in the case cannot prove that A and B have donated the house involved in the case to C. From the point of view of the burden of proof, the proof of the gift is the highest standard, not a high degree of certainty, but the exclusion of all doubts possible. In this case, there was no gift contract between the parties, and plaintiff B denied it, and it was difficult to determine the expression of intent of the husband and wife to jointly donate.
Based on the comprehensive consideration of the circumstances and factors in the time span of the real estate involved in this case, such as the purchase, contract signing, and registration, and in accordance with the principles of fairness and good faith in the Civil Code, the court of first instance confirmed that the real estate involved in the case was jointly owned by A, B and C.
The court of second instance held that on the issue of whether registration in the name of C was deemed to be a gift to individual C. Shortly after the payment of the purchase price in the early stage, B was taken measures in accordance with the law on suspicion of a criminal offense, and the subsequent payment of the house payment and the signing of the house sale contract were all the participation of A alone, and B did not actually participate, A and C did not submit evidence to prove that B had expressly agreed to donate the entire share of the real estate involved in the case to C, and the "self-statement" written by B did not clearly indicate that the entire share of the real estate involved in the case had been donated to C. In the absence of other evidence to further support B's consent to donate the entire share of the real estate involved in the case to C, and only C is the owner of the real estate, A's unilateral act of acting as an agent for the certificate after divorcing B does not fall within the scope of normal family agency, and undoubtedly deprives B of the right to know about the registration of the real estate as the guardian of the other party C. The right to choose, now only in the name of C to purchase the real estate involved in the case is deemed to be B agreeing to donate all the real estate involved in the case to C personally owned by insufficient evidence, so A and C's appeal claim that the house involved in the case has been donated to C personal ownership cannot be established.
At the same time, the court of second instance held that in this case, B asserted that he did not express his intention to donate C's real estate, but A, as the co-owner of the joint property of the husband and wife, did not harm B's interests by donating part of his own part to C. Although C did not actually make the contribution, based on the fact that he became the buyer of the house involved in the case as a minor family member at that time, and in the case of the parties' inconsistent rhetoric and insufficient evidence, in accordance with the principle of the best interests of protecting the rights and interests of minors, combined with the content of B's self-report, "I have paid a lot for the interests of the children." "The court of first instance found that A and B had an expression of intent to allow C to acquire part of the real estate, which had a factual and legal basis, so it was not improper for the court of first instance to find that the house involved in the case was jointly owned by A, B and C.
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Lawyer Profile
Li Yue is a lawyer at Beijing Jingshi (Hangzhou) Law Firm
Education Background: Master of Laws, East China University of Political Science and Law
Areas of Expertise:
1. Bankruptcy legal practice and research on civil and commercial rights and interests disputes
2. Publications: "New Common Knowledge of Contracts - Interpretation of 66 New Rules of the Contract Part of the Civil Code"