Research On The Legal Effect Of Guarantee Set By Commercial Housing Sale

Affected by the economic situation and financial policy,in the face of financial constraints and can not get financing from financial institutions,real estate development enterprises tend to be through the way of private lending to solve the temporary shortage of funds.In order to guarantee the repayment,the real estate development enterprise and the lender tend to sign the sale contract of the real estate separately under the loan contract and agree to guarantee the borrowing debt with the commercial sale contract.When the loan is not repayed on schedule,the ownership of the house is transfered by the borrower to the lender for replacing the loan.How to define the nature and effectiveness set by such commercial housing sales contract,there are great differences in the doctrine,the practice of the trials is not uniformed.In order to unify the judicial referee,the Provisions of Article 24 of the Supreme People's Court on Several Issues Concerning the Application of Law in Civil Loan Cases(hereinafter referred to as the "Provisions")as promulgated on September 1,2015: "The parties have signed a contract of sale as a loan contract guarantee.If the borrower fails to repay the loan after the borrower expires and the lender requests the execution of the contract of sale,the people's court shall hear the legal relationship in accordance with the civil loan and explain to the parties the change of the claim.If the party refuses to change,the people's court ruled that the prosecution was dismissed.The lender may apply for the auction of the subject matter of the sale and purchase contract in order to repay the debts after the borrower fails to perform the monetary obligations determined by the effective judgment after the judgment made by the civil loan legal relationship.The borrower or lender has the right to claim a return or compensation for the difference between the price of the auction and the repayment of the principal and interest of the loan." But,Article 24 of the "Provisions" is only a procedural procedure for the handling of such cases,and it is not clear that the specific nature and legal effect of the guarantee set up by commercial housing sale,which has led to a great disagreement on the understanding of the article.Based on this analysis,this paper tries to demonstrate the specific nature of the guarantee set up in the sale and purchase contract of commercial housing by analyzing the typical case in our judicial decision and on the basis of the existing viewpoints from the point of view of explanation,and to analyze the understanding and application of Article 24 of the "Provisions" in order to explore a new path to deal with such cases.The text is divided into four parts,the contents of which are as follows:The first part is the introduction of the case and the controversy caused by the case.First is a brief introduction of the case and the court of first instance and second instance of the referee reasons and the reasons for the parties.Then summed up three controversial focus of the case.The second part is the analysis of the legal nature of the case.First of all,through the introduction and analysis of the existing views to the commercial housing sale,we think it can not form the transferring guarantee or after transferring guarantee,it does not meet the constituent elements of the mortgage,can not set up mortgage guarantee.Secondly,by comparing the connection and difference between this settlement and pre-contract of datio in solutum,we believe that the guarantee set up by commercial housing sale is the pre-contract of datio in solutum.Finally,through the analysis of the nature of the pre-contract of datio in solutum,we concluded that the guarantee provided by the way of buying and selling the commercial housing can not establish the guarantee of the property right,and its nature is the guarantee agreement of the creditor's rights.The third part is the analysis of the legal effect of the guarantee set up by commercial housing sale.First of all,through the analysis of the sale of the contract that the composition of the hypocrisy of the composition,the sale of the contract is invalid.Secondly,through the introduction and analysis of the different views on the hidden behavior,we think that the pre-contract of datio in solutum is effective.Finally,through the analyzes of the relationship between pre-contract of datio in solutum and the fluidity contract prohibition,we think it should be controlled by the fluidity contract prohibition.But because the terms of the fluidity contract does not necessarily harm the interests of the debtor,so it should be limited in applied the interpretation.The fourth part is the controversy caused by the Article 24 of the "Provisions" and the recommendations of its improvement.First of all,it introduces the controversy over the nature of the application of law and the nature of the sale contract of Article 24 of the "Provisions".Then through the basis of the analysis of Article 24 of the "Provisions" and the analysis of various views,this article puts forward the understanding of Article 24 of the "Provisions" and puts forward its shortcomings.Then,through the summary of this article,we put forward three recommendations to improve the Article 24 of the "Provisions".