A Study On Secured Loan Of Sales Contract

Trading guarantee loan is regulated by article twenty-fourth of “private lending judicial interpretation”.From a macro point of view,it can be divided into two cases:property rights transferred under the contract of sale and the not-transferred.As trading ‘guarantee',there are many different theories of cognition,and each theory has a different theoretical structure which resulted in confusion of understanding.Through the analysis of the related theories,it is certain that they can not be used as a theoretical basis for trading guarantee.The judicial interpretation calls it guarantee,but if as the guarantee,it will have several problems such as lack of publicity means,violation of numerus clausus,violation of fluidity contract,unclear validity of rights,etc..In order to avoid the above problems and clear the understanding,we should not follow the guarantee system as its logical premise.Trading ‘guarantee' loan does not belong to a guarantee system,which does not meet the nature of the guarantee system.Based on the legal concept and the present legal system,and referring to the theory of “the relative transfer of ownership”from Germany,it is feasible to identify it as a system with security function.As a system with the function of security,the ‘guarantee right 'gained by creditor is actually a conditional claim.Combined with the current publicity system,trading ‘guarantee ' will play guarantee function better,and there is no need to introduce other publicity system.To construct trading ‘guarantee',the publicity system is the main aspect.In construction,we should distinguish different situations,as mentioned above:property rights transferred and not-transferred.In the transferred case,the ‘guarantee' can be combined with publicity methods such as delivery,registration.In the not-transferred case,it can be combined with advance notice registration.In this guarantee's application,according to the provisions of judicial interpretation of private lending,the sales contract and loan contract shall be in force when they meet the requirements of the law.When the ‘guarantee' right and other rights are in coexistence,the judgment of the validity of right should consider different situations and nature of guarantee right and other rights.The third party can claim ‘bona fide acquisition 'or not depends on analysis of specific cases.When the creditor realizes its ‘guarantee' right,it is necessary to give him the option.The creditor can choose to perform the contract or auction sale or other ways to realize his rights.As the problem of bankruptcy recallright and bankruptcy exemption,it should be analysed under the division of transferred case and the not-transferred case.Due to the connotation of property rights is expanding,rules of trading ‘guarantee' regulated by “Judicial interpretation of private lending”should apply to other similar situations.