The Empirical Analysis And Judicial Response Of Trading Style Guarantee

In real life, the objective environment is complicated, and the demand of the transaction subjects is different. So when trading, in order to maximize these benefits and avoid risks, these civil subjects will create a new type of transaction model.Compared with the existing legal provisions of the contract,this pattern is not only more diverse in form but also more mixed in the content of provisions on the rights and obligations of the parties. Once these transactions produced dispute which enter the stage of the proceedings, its hybridity of content, innovation of forms often makes the parties' real intention for concluding the contract hidden under the contract. These characteristics make it a difficult case in the trial practice, so that the judge feel formidable when handling the case. In practice, for a similar case, different courts made a variety of different and even opposite trial results. In recent years, there is a kind of cases appearing repeatedly but dealt with poor effect, which usually provide guarantee for the loan relationship through making a conclusion of the <real estate contract>. Therefore, discussion object of this paper is such cases, which analyses the focus of controversy one by one. And its significance lies in summing up experience and provide suggestions when handling these cases for the judicial practice in the future. This paper is divided into four parts as follows.The first part mainly introduces the basic situation of "real estate sale in form, loan guarantees in essence" cases. This part starts with a typical case as an introduce in order to analyze their characteristics and cause of frequency. It also analyses the core content in this case------the nature of trading guarantee emphatically,which distinguish the core content with legal security interest, mortgage and ownership reservation and so on.The second part is based on trail practice. After carefully studying cases referee reasons and verdicts, the author classified them according to the difference of trail ideas and point out their deficiency and advantage. On this basis, it points out that the third trail idea which namely recognizes guarantee nature of the business contract and gives the real right effect is supported by the author.The third part analyses the effectiveness of the Trading Guarantee. This paper states that prohibition of fluidity clause and Numerus can not deny its effectiveness. On the one hand prohibition of fluidity's scope should be subject to reasonable restrictions. On the another hand Trading Guarantee communicates with the legislative purport of Numerus. Last, after analyzing the function of Advance Notice Registration, we can identify Trading Guarantee which has a public programs is a kind of chattel hypothecation.The forth part is a summary of this paper. Through analyzing the pros and cons of these three trial ideas. We can sum up experience for the treatment of such cases in the future, put forward the "predictable" countermeasures with strong operability for judge. It is a process that the theory service practice, a sublimation process from individual to general.