The Research On Housing Sales For Guarantee

With the development of economy,there is a phenomenon in the private lending,which shows that the parties of the loan relationship can guarantee the loan by signing the contract of housing sales.The structure of this kind of legal relationship is different from the typical security system in our country.In this type of guarantee of housing sales,not only is the finding in fact very complex,but there are also certain difficulties in the determination of the law.As the product of the autonomy of the parties,those how to accurately grasp the nature of the guarantee,and whether it should be recognized in the current legal system in our country,are problems that must be faced in the judicial practice.In this paper,the above issues are discussed.In addition to the introduction,it is divided into four parts:The first part analyze the existing problems in the practice of housing sales for guarantee through three cases.There are three main problems of the sale of housing guarantee in the court: first,how is the nature of the guarantee provided by the selling contracts of housing;second,through the form of the sale of housing contract,whether the guarantee is valid;third,whether the guarantor for the sale of housing in the subject matter has priority.The second part is the legal relationship and property analysis of the housing sales for guarantee.Through the comparison with the guarantee system,it can be made to be clear that the real estate is not a real estate of transferring guarantee,and our country doesn't have the necessity of establishing the transferring security of real estate.Through the sales of housing for guarantee and simple sales contracts,clear the basic performance of the housing sales for guarantee.Then through the analysis of various theories,the selling guarantee of housing is not a guarantee,it's that the parties create a new claim for creditors through the form of the buying and selling contract of the house,which is the non-typical guarantee of a creditor's right.The third part is the analysis of effective elements for housing sales guarantee.For the effectiveness of this contract for the sale of housing there are two main views: first,that the sale of the housing contract alleged false representation;second,found that the sale of the housing contract in violation of the ban.The author think that there aren't hypocritical expression in the sale of housing.However the result through the sale of housing guarantee has the violation of the flowing ban.Therefore,when there are the case of the effective guarantee,the parties can not obtain the ownership of the house.But the flowing ban itself is a kind of autonomy of the party's autonomy,if the ban is suspended,the sale of the housing contract is not defective.The fourth part is the analysis of the effectiveness of housing sales guarantee,Although there aren't the purpose in pursuit of access to housing ownership of housing sales in the existing law,but it is not completely ineffective,it still has the guarantee function of the debt of lending contract,creditors can auction houses for debts,especially housing belonging to the third case.And for the analysis of effectiveness for the selling guarantee of housing under the notice of registration,the author thinks that the creditor's rights on the notice of the registration can only produce the oppositional effect,even after the notice of the registration,the guarantor may not have the effectiveness of priority.However,in judicial practice,this kind of guarantee can be given priority.