The editor says:Parents, as guardians, have the right and obligation to take care of their minor children's property. Is it valid for parents to mortgage the property of their minor children as guardians?
In real life, due to the child's schooling, tax evasion, grandparents' gifts, etc., it is not uncommon for children to obtain property including but not limited to real estate, shops, cash, certificates of deposit, ** and other properties when they are minors, and parents, as guardians, have the right and obligation to manage the property of minor children, and then mortgage the property of their children for the purpose of improving the quality of life, or improving the educational environment of their children, or seeking their own career development, etc., whether the parents' mortgage of the real estate of the minor children is valid, If it is not necessarily valid, then how to determine the validity, the emergence of these questions is worthy of our study**.
1. Current situation and problems
The first paragraph of Article 35 of the Civil Code clearly stipulates that "guardians shall perform guardianship duties in accordance with the principle of the best interests of the ward." Guardians must not dispose of the ward's property except to protect the ward's interests." In this case, the property mortgaged by the parents of the minor child must meet the requirement that the minor child will be able to make a profit. In judicial practice, there are certain controversies over "interests" and "dispositions".
2. The focus and difficulties of the dispute
1) How to define the "principle of the best interests of the ward".
Article 23 of the Civil Code states that the parents of minors assume the duties of their guardians and legal persons, that is, they have the right to manage their property while taking care of the daily life of their minor children. The interests of the ward should be judged on the basis of their necessity, not just direct financial interests. For example:If the purpose of the mortgage is to serve the minor's future life, study, education, medical care, etc., the author believes that although it seems to have harmed the minor's economic interests at present, it has been for the benefit of the minor for a long time, and should be deemed to be for the benefit of the minor. If the mortgaged property is to provide security for the debts of the parents, considering that the economic level of the parents will directly affect the living standards of the minors, the author believes that it can also be determined to be for the interests of the children. ButIf the mortgaged property is for the purpose of securing the debts of a third party, it is clearly not in the interests of the minor to increase the risk of damage to the property.
Article 35, paragraph 2 of the Civil Code requires that the guardianship of parents shall respect the wishes of the ward. While objectively protecting our interests, we should also take into account our own true wishes, but we should also proceed from a rational point of view, rather than making the solicitation of opinions a mere formality.
2) Determination of validity.
If the mortgage does not protect the interests of the minor children, how can the validity of such an improper mortgage be determined? There are mainly the following judgment paths:
No right to dispose of it. This refers to the disposition of another person's assets in his own name by a party who does not have the right to dispose of it. However, there are certain differences in this view, and some scholars believe that this kind of mortgage behavior is essentially a statutory ** behavior, so it does not belong to the disposition without authority; Another group of scholars believes that according to the law, parents are not allowed to dispose of their property except for the benefit of their minor children, so conversely, dispositions that are not for the benefit of minor children should be disposed of without authority. In the author's opinion, minors enjoy independent property rights as independent subjects, so parents only have the "right to dispose of" the real estate of their minor children and do not have the "right to dispose of", so they should not be classified as having no right to dispose of them.
See **. It means that the behavior of the person being ** is sufficient to make the third party believe that the person without the right has **. However, the minor, as the person being the subject, is not responsible for the conduct that occurred externally, because it does not have the constitutive elements of apparent **, and should not be judged to be apparent.
Abuse of rights. This refers to the behavior of the person who violates the will of the person and damages the interests of the person when exercising the right. Some scholars believe that even if the parents exercise the right in the wrong way, the right still exists, so it should be abused by the right. The author believes that on the one hand, the parents' behavior of harming the interests of minor children exceeds the provisions of the law and should be regarded as having no rights, and at the same time, the abuse of rights lacks relevant legal support, so the characterization is not conducive to solving the problem.
Can't**. It refers to an act carried out in the name of another person without the right to **. Some scholars believe that because minors do not have the corresponding capacity to act, and at the same time lack other responsible subjects, they should not be classified as invalid**. However, the author believes that the lack of rights is the best way to solve the problem at present, and the children after adulthood enjoy the right of retrospective recognition, which protects their interests to a certain extent, and their parents should bear the responsibility of the fault guarantor and bear the corresponding liability for compensation.
III. Conclusions and Recommendations
When judging the validity of the parents' mortgage on the property of their minor children, it is necessary to conduct a comprehensive analysis in light of the specific circumstances of the case and the legal provisions. It is necessary to consider the ownership of the property registered in the name of the minor child purchased by the parents, the establishment and exercise of the mortgage right, and the validity of the "no disposition" provision.
In practice, it is necessary to pay attention to the protection of the good faith and trust interests of the third party, and at the same time, when handling the mortgage registration, it is necessary to fulfill the obligation of reasonable review to protect the interests of the bona fide third party. It is suggested that key issues such as the ownership of the property registered in the name of the minor child and the validity of the "no disposition" provision should be further clarified in the future legislation. At the same time, we should strengthen case studies and adjudication guidance in judicial practice, improve the quality and efficiency of judicial trials, reduce the phenomenon of different judgments in the same case, and enhance the credibility and authority of the judiciary, so as to better safeguard the legitimate rights and interests of all parties and the public interest.