A Study On The Nature Of House Sales Contract In Private Lending

For a long time,theoretical and practical circle have dispute on the nature of house sales contract in the private lending, the Supreme People's Court particularly make a provision in article 24 of judicial interpretation 2015(18),however, this article does not demonstate the "guarantee" set by house sales contract fully,and also failed to clarify the difference between it and alienation guarantee, which lead to the deviation on the understanding. This paper firstly release article 24 of judicial interpretation 2015(18),and then think about two aspects of theory of the priority of compensation and reflections on resistance,then examine the current legal system, point out the applicable conflict between article 24 of judicial interpretation 2015(18)and article 28?29 of judicial interpretation 2015(10)and analyze the reasons, finally,on the basis of the study conclud authenticity qualitative conclusions about the house sales contract in private lending.This paper is divided into five parts except introduction and conclusion.The first part is the release of article 24 of judicial interpretation 2015(18). This part is mainly to release by semantic interpretation.first of all, the article 24 admitted the "guarantee" set by the house sales contract as after-alienation guarantee, and thought that except the time of guarantee rights transfer,there is no essential difference in the nature, value, function and attribution orientation and so on. Second, article 24 established the principle of judgement acoording to private lending relationships, this principle also embodies the subordinate characteristics of the guarantee. Third, article 24 affirmed principle of the ban on the terms of the flow, the lender can apply for to auction subject matter, and to repay its debts,and then return or demand compensation, this is the way of the liquidation obligation to avoid the transfer of the subject matter of the straight.The second part is the reflection of priority of compensation on "guarantees" set by house sales contract. This part is the reflection of theory mainly around the first section of this article,compare the "guarantees" set by house sales contract with alienation guarantees and real estate mortgage guarantee. Alienation guarantees as a atypical guarantee, whether due to exclusive effect after transfer or, as the real rights for security itself, creditors have priority over others of position, and the "guarantees" set by house sales contract does not transfer ownership, cannot enjoy similar effect of the priority of compensation to alienation guarantee; Real estate mortgage guarantee by law to enjoy the priority of compensation, and in the "guarantees" set by house sales contract, there is only a contract, do not conform the set of law, so that no priority is given to by law.The third part is the resistance of "guarantees" set by house sales contract. This part is mainly start from two issues of archival filing registration as well as the advance notice registration. The archival filing registration of commercial housing sales contract is the government's administrative behavior, does not have creation of property rights, and also the effect against a third party. And although house sales contract with advance notice registration have the effect against a third party, but the nature of the rights of creditors is also claim, after the formal registration, the establishment of guarantee is alienation guarantee, rather than after-alienation "guarantee". Civil law theory development up to now, we must acknowledge that the right of possession and the separation of normalized is tangible, such as possession transfer of idea delivery is essential publication softening, which makes it little difference with counter publication on the appearance of the real right transfer, but we must not therefore deny the essential differences between essential publication and counter publication. The "guarantees" set by house sales contract have no publication,to admit that it have the same properties and function with alienation guarantee, and then try to give it resistance through the archival filing registration or advance notice registration, belongs to escape from the essential publication to counter publication.The fourth part is the applicable conflict between article 24 of judicial interpretation 2015(18)and article 28?29 of judicial interpretation 2015(10).This part mainly points out the conflict between the two articles and analyze the reasons. Developers set "guarantee" by the house sales contract, and then sell the house to the buyer in good faith. For article 28?29 of judicial interpretation 2015(10)gives the buyer in good faith the rights to rule out execution, and article 24 of judicial interpretation 2015(18) consider that the " guarantees " set by house sales contract is the same with alienation guarantee, which must cause the conflict of application.The fifth part is authenticity qualitative conclusions about the "guarantee" set by house sales contract in private lending. From the macroscopic inspection, this part identified that the "guarantee" set by house sales contract does not provide effective guarantee for the loan contract between both sides, in fact, the creditors' rirht of transfer is limited by the conditions of "double sales",the house sales contract does not have the real rights for security properties. And consider the nature from the debt law,the loan contract is entry-into-force clause or resolutive condition of house sales contract, and the appointment of compensation with house for debt between the parties is the precontract of offset. So it shall be classified into debt laws to be adjusted. Only this, could we avoid touching the doctrine of statutory of the right in rem,avoid the principle of ban on the terms of the flow, protect the interests of the third person in good faith, finally maintain the balance of the binary system of the real right and claim.