Research On Trading-based Guarantee

In recent years, Trading-based guarantee is a new trading acting. However, there is not the relevant provisions in the Property Law and the Guarantee Law. Therefor, there are different ideas in the both theory and practice. On the legal nature of the trading-based guarantee,there are various opinions in the academic circles,mainly including the alienation guarantee or after-alienation guarantee, the real estate mortgage,the creditor's rights guarantee, the guarantee that different from the traditional guarantee and debt payment in goods. But the trading-based guarantee is different from any one of the above theories. The ownership of the subject matter of sales contract of the trading-based guarantee guarantees for the borrowing contract. It is called the property security,not the creditor's rights guarantee. It is different from the mortgage, the pledge,the lien. When the debtor can not perform the debt, the creditor gets the ownership of the collateral, not the priority of the compensation of the collateral. It is actually a new security of interests. Just because of the hysteresis of the law, it does not regulate it. So,we should formulate new rules about the new security interest, to protect the legitimate rights and interests of the parties. There are also many different views about the effectiveness of the sales contract in the judicial practice and academic circles, some think it is invalid, others suppose it is valid. People who claim the sales contract is invalid think it belongs to conspire hypocritical, violates the mandatory provisions of the law, or violates the legal principles of property rights. In fact, the sale contract is valid,but it is just attached a resolutive condition. The reason why the buyer does not get the good is because the good is not only the subject matter of the contract but has the duty to guarantee the creditor's right . The effectiveness of the trading-based guarantee is very comprehensive,including the scope of the subject matter,the effectiveness to the creditor,the debtor, the guarantor, the third person and other creditors .whether the effectiveness is to the accession things, the additive, the substitutional object, the fruits; The creditor has the same right as the general guarantor, such as the right of requiring guaranteeing, the right of preserving the collateral, the unsafe right of defense and so on. But specially, the creditor can get the ownership of the collateral when the debtor does not repay the loan.The guarantor has the obligations to guarantee the claim can be realized successfully and not to establish other obligations on the collateral. If the guarantor is the third one beyond the parties of the contracts, the debtor has to pay the guarantor after the guarantor transfers the ownership of the collateral to the creditor, except that he has the obligation of performing his debt. When the guarantor establishes other obligations on the collateral,the interests of bona fide third party should be protected. The effectiveness of the trading-based to the creditor of the guarantor and the creditor will depend on the particular conditions. Finally, it is necessary for us to establish the mechanisms of the trading-based guarantee, including its scope of application, reform and contents of the contracts, publicity system, liquidation system. The collateral of the trading-based guarantee must be real estate, and its ownership will not be transferred to the creditor during it guaranteeing the claim. The sales contract must be concluded before the deadline of the debt. The two contracts must be written form. When the parties establish the trading-based guarantee, the real estate must be public, in order to protect the transaction security and improve the transaction efficiency. If the real estate is not registered, it can not be called the trading-based guarantee. The liquidation obligation of the creditor is to estimate the value of the collateral. It is because that the creditor realized his claim by the debtor repaying the loan or getting the ownership of the collateral.