“以房养老”骗局下的公证制度思考—兼论司法部《关于公证执业“五不准”的通知》

Contemplation on Notary System under the House-for-Pension Fraud—Analysis on the Notice by the Ministry of Justice on the “Five Injunctions” of Notarization Practice

摘要: “以房养老”骗局是以高息理财诱骗老人抵押房屋借款，再经过公证的房屋处分委托书以及具有强制执行效力的债权文书公证书将房主房屋低价卖出的行为。公证处在其中的法律责任引发了批评。文章认为公证处在本案中作为一个中立的第三方机构，在依照正当程序履行相应公证的前提下，无需承担法律责任。公证机关所证明的连环契约虽形式上不符合流质，但具有流质的实质效果，应以抑制。对房屋全权委托公证存在的问题，可通过卖家、售价等设计来减少不法分子的操作空间，可通过充分履行告知义务，加强审查力度，从实体与程序上抑制此类骗局。

Abstract: House-for-pension frauds exploits high-interest financing with a view to inveigling old people into mortgaging their real estate for loans. Lenders, by virtue of the notarial power for housing and enforceable public certificate of creditor’s rights, proceed to sell the houses at a low price. Whether the notary office in the case should be held accountable has sparked substantial criticism. The author holds that there is no need for the notary office, as a neutral third party, to be liable under the due process. Though the form of notarial serial contracts does not match the definition of fluidity contract, the material effect does, hence the urgency of a ban. As for the potential problem arising from power of attorney for housing, we can specify the purchaser as well as the price to reduce the room for malefaction. What’s more, through the full discharge on disclosure obligation as well as reinforcement on regulatory scrutiny, such fraud can be curbed both procedurally and substantially.