The Analysis Of The Characteristic And The Effectiveness Of Commerical Housing Sales Contract Which Is Guaranteed

The paper takes the Case of Zhu Junfang which is published on the twelveth in bulletins of the Supreme People's Court in 2014 as an example. Combined with the provision of the Article 24 of the Supreme People's Court on Several Issues concerning Application of the Law to the Folk Lending Rules, this paper does a deep research in the law structure and effectiveness in the relevance of loan contract and housing contract.The first part introduces the basic facts and focus of dispute. In this case, the parties sign load housing contract and loan contract by using the same money, and promises such a provision in the loan contract that is if one party cannot refund become due, the mortgage will charge the loan. The focus on this case are the nature of the legal relationship between the parties and the effectiveness of housing contract and of the agreement on the sales contract as well as the replacement of debt by the house.The second part summarizes different judgments of different courts. There are two main ways of judgments. The first one is to determinate the two parties as the relationship of loan contract. The housing contract guarantees for loan contract. “Where due debt cannot be paid and the collateral can be offset, the two parties pay no money to each other” in the loan agreement is void for the violation of mandatory provision. the buyer cannot require the performance of the contract to obtain the property right of the house. The other one is affirming housing contract and loan contract, housing contract is not against the mandatory provisions and administrative provisions of laws and regulations, and the buyer can require the performance of the housing contract to gain the right.The third part analyzes the application of the Article 24 of the Supreme People's Court on Several Issues concerning Application of the Law to the Folk Lending Rules. Regarding the purchase contract as a guarantee referred to the Article 24 includes two types: the type of case which is to be discussed in this paper and transferring guarantee whose property rights of the subject has not been transferred yet. This paper will discuss the former type. The first paragraph of the Article 24 negates the judgment of Zhu Junfang case, and does not support the creditor's claim of the performance of purchase contract. The second paragraph allows creditor to enjoy the priority of payment on the collateral by auction, but fails to mention if creditor is entitled to the priority of claim, which means that the legislation does not grant the creditor the priority of claim. To creditor, the second paragraph is meaningful only when a third party is the guarantor. The nature of sales contract as guarantee and the validity of the agreement on the sales contract as well as the replacement of debt by the house are not clarified, although on the basis of the Article 24 the cases discussed in the paper can be dealt with accordingly.The fourth part analyzes the nature of the sales contract as guarantee. In all the point of view about the nature of the contract,the consensus of datio in solutum is not contradictory with untypical security. As a matter of fact,the sales contract as a way of guarantee is a new kind of security of creditor's rights nature. The creditor's right complementary with advance notice registration may likely generate the effectiveness of confrontation and priority of compensation.But according to the Article 5 of the Supreme People's Court on Several Issues concerning Application of the Law to the Property Law, the advance notice registration will lose their legal effect if sales contract is confirmed as invalid.The fifth part analyzes the influence of forbidden regulation on mortgage of goods in flow on the effectiveness of housing contract.The housing contract in the case isn't mendacious expression,although providing guarantee by the sales contract is beyond-law act which avoid the legal prohibition on mortgage of goods in flow. The ban is not only applicable to the mortgage, the sales contract to provide security may achieve a similar legal effect of the flow, so it can not be allowed for the creditor to obtain the housing directly. Prohibited performance of the sales contract in proving garantee is the legal intervention of autonomy of the will, this prohibition in balancing the interests of both sides inevitably some overkill, contract does not occur any effect is bound to contribute to the bad faith of the wind.And there are many questions for the necessity of the prohibition on mortgage of goods in flow, therefore,it is a reasonable choice that transform the contract from invalid toward effective without violating the mandatory provisions of the law and the autonomy of the parties, and allows the repayment from the auction subject matter.