The Analysis Of The Legal Characteristic And Effectiveness Of Sales Contract Which Is Guaranteed

The paper discussed the legal construction and its effectiveness through the signing of commercial housing sales contracts for civil loans for the guarantee(secured sale contract),in practice,taking "Zhu Junfang case" as an example,combined with the "private lending judicial interpretation" of the provisions of Article 24.This paper is divided into the following sections to discuss.The first part leads to the problems to be explored in the form of case analysis.In this part,the author lead to the summary of this article to explore the issue mainly through Zhu Junfang case of the basic case,the focus of controversy and the four court referee ideas.The parties have signed a contract of sale and loan for the same payment and agreed that "if the debt can not be repaid,then the collateral can be offset,the two sides do not pay any money".Then the debtor can not repay the loan,the creditor requests the transfer of ownership of the house.The focus of the dispute between the two sides is the nature and effect of the legal acts between the parties.This is the question that needs to be explored in this paper.The second part is the legal nature of the guarantee sale contract.There are different views on the recognition of the legal construction of the secured sale contract.There are(after)Transferring Guarantee the view of real right and Pre-contract for Datio in Solutum the view of debt.The author thinks that the secured sale contract is essentially a matter of Pre-contract for Datio in Solutum,and is a kind of untypical debt security through the analysis of these two theories,The Pre-contract for Datio in Solutum is a kind of debt security,but it have a function of guarantee,when the parties have an advance notice registration.But the advance notice registration will lose their legal effect if sales contract is confirmed as invalid according to the Article 5 of the Judicial Interpretation of Property Law.The third part is the analysis of the validity of the guarantee sale contract.Sales Contract which is guaranteed is not mendacious expression.Pre-contract for Datio in Solutum and the terms of the discharge are in essence consistent,and the secured sale contract is not invalidated because of the beyond-law act which avoid the legal prohibition on mortgage of goods in flow as well as the terms of the discharge dose not affect the overall effect of the guarantee contract.And Article 24 of the "judicial interpretation of private lending" did notcompletely deny the validity of the sale contract.And increasing the clearing session in the basis of application of the Prohibition on Mortgage of Goods in Flow,the parties can not directly obtain the subject matter of the subject matter of security.The fourth part is the assessment of the "private lending judicial interpretation" Article24.Although the judicial interpretation provide a basis for the decision for the sale contract dispute,but it did not clear the nature and effectiveness of the secured sale contract.In practice,there are different understandings of it,the author think that from the perspective of Pre-contract for Datio in Solutum to understand the judicial interpretation of the more appropriate.In the second paragraph of Article 24(2)of the "judicial interpretation of private lending",the object of the sale and purchase contract of the lender applying for an auction is not the general property of the debtor,but the subject matter of Pre-contract for Datio in Solutum.The contract is not valid because of the beyond-law act which avoid the legal.The fifth part is the conclusion of this article.And the secured sale contract is essentially a matter of Pre-contract for Datio in Solutum,and is a kind of untypical debt security.The secured sale contract is not invalidated because of the beyond-law act which avoid the legal prohibition on mortgage of goods in flow.Without prejudice to the force of the mandatory provisions of the law,we should be the greatest degree of respect for the parties to the autonomy of the meaning.The judicial interpretation of the provisions of Article 24 of the "interpretation of private lending" should be understood in the respect of Pre-contract for Datio in Solutum.The judicial interpretation should respect the meaning autonomy of the parties and,on the other hand,through the liquidation procedure to balance the relationship between the parties.And it is a compromise approach.