Research On The Effect Of "Called For The Trading, Actually Lending Guarantee"

Affected by the economic situation and the financial policy, in recent years, China’s private lending has dramatically increased, borrowing means also showed characteristic of diversification, "called for the trading, actually lending guarantee" is the typical. Such disputes not only of great difficulties in finding the fact but also in the application of law t. What is the nature of the " called for the trading, actually lending guarantee" ? How to determine its effect? Becoming a problem which must be faced in the judicial practice at present.This paper consists of three main parts: introduction, main body and the conclusion. The main body consists of four parts. The main contents are as follows:The first part is an overview of the " called for the trading, actually lending guarantee". This part mainly from four typical " called for the trading, actually lending guarantee" cases, leading to the the presence of main and academic disputes in the four case, then combing on the current judicial practice of " called for the trading, actually lending guarantee", drawn in the conclusion that in the current judicial practice, this problem processing mode can be roughly divided into three kinds: contract effective, real right unchanging type; contract effective, real right changing type; and the contract null and void, property is also not changing type, which reasons are diverse.The second part is about the nature of the "called for the trading, actually lending guarantee". Through the case analysis, drawn a preliminary conclusion that the nature of "called for the trading, actually lending guarantee" is the releasing guarantee, and through the concept and legal characteristics of releasing guarantee confirmed the idea, then with the relevant legal system were compared to releasing guarantee. Based on the "called for the trading, actually lending guarantee" has the duality of ownership transfer of the appearance and guarantee the essence of objective, this paper introduced in and analyzed the Ownership Constitution theory and the Security Right Constitute theory, and points out that the judicial practice of our country should take ownership constitution theory.The third part is the analysis of the effectiveness of the "called for the trading, actually lending guarantee". Mainly from two aspects: of contract effect and real right effect. In terms of the contract, through analyzing Conspires False representation theory,pointed out that transferring guarantee and contrary to through on the prohibition of the fluidity clause theory analysis, in recognition of the fluidity clause the rationality on the basis that fluidity clause is the realization of creditor’s rights, transferring guarantee can mining settlement of implementation, so that the contract is valid. When analyzing the validity of the real right of the real right, it is pointed out that it is necessary to use the real right to ease the validity of the real right of the guarantee.The fourth part is the analysis of the internal and external validity of the "name of the transaction, which is the loan guarantee". Within the scope of the internal effect, including the scope of the subject matter and the creditor’s rights, the scope of the subject matter, the way of the implementation of the right to guarantee and the right to claim for the return of the subject matter. On the external effect of transferring guarantee, this paper on the ownership said while also taking into account the set of transferring guarantee essence, focuses on the analysis of the disposition of the subject matter, the subject matter is forced execution, bankruptcy and the object is the third party infringement case, the guarantor and set the relationship between the creditor, finally, it is pointed out that because transferring guarantee has the means and purpose is not commensurate with the characteristics, we should pay attention to the external form of the transfer of ownership in the process, and the implementation should pay more attention to the substantive economic purpose of the security, the pursuit of the parties are essentially equitable.