The Study Of Legal Issues Of Contract Of Sale Guarantee Private Lending

With the development of the society,there are more and more ways of capital intermediation.The role of private lending in promoting capital flows plays an important role.In order to guarantee their own claims in the future can be achieved,private loan creditors tend to sign real estate sales contract with the debtor,and agreed that if the debtor does not repay loans or inability to repay, then perform the sale of commercial housing contract.The Supreme People's Court recently issued the "Law of the People's Court on the trial of a number of legal issues relating to private lending cases," Article 24 regulate this problem.However, this judicial interpretation does not solve all the controversial issues.Legislators tend to regard the sale and purchase contract as a guarantee for private lending, confirming the guarantee function of the sale and purchase contract, but did not refine the specific guarantee. This judicial interpretation does not mentioned whether the contract is valid or not,only has the procedural requirements.In the second paragraph, it can be seen that when the debtor does not repay the loan at the end of the period, the subject matter under the contract of sale may be auctioned at the price, but the creditor has no right of priority in the subject matter of the contract of sale.It is noteworthy that the second paragraph only provides a way to deal with the subject matter of the sale of the contract, it seems that some single.Thus, there are three focus issues that must be faced: First, what is the property of the sale-type guarantee?Second,the sale of the contract has effect or hasn't? Thirdly, does the creditor enjoy the right of priority ?The essence of a commercial sale contract is a guarantee that is not a typical form of guarantee as set forth in the property law, but an atypical guarantee - a releasing guarantee.The Supreme Court of civil law on the interpretation of Article 24 does not express the validity of the contract of sale, this paper hold that the sale of the contract is a hypocrisy that truly effective and play a role in the sale of the contract under the appearance of the guarantee.After the signing of the security contract, if the adoption of reasonable means to publicize, it has the effect of real right, with priority compensation, if not publicity, it is only the general claims, do not have the right to give priority.Civil law does not regulate releasing guarantee , there is no special way of publicity.Therefore, for the time being, if the creditor has advance notice registration of real compensation,we shuold recognize his priority.Only the pre-sale registration can not be considered to be publicity.For the sale-type security,the realization method is still the traditional way to achieve security.But no matter what kind of liquidation to adopt, we should respect the parties' agreement and choice, and the court should not interfere too much.If the parties do not agree, or agreement invalid,as well as the views can not reach an agreement,the court can determine the value of the subject matter in a variety of ways,and it is not necessary to take the auction in such a single way.